CHAPTER IV.

EXCEPTIONS.

5297. What is an exception. An exception is an objection taken to a decision of the court upon a matter of law. [51 v. 57, ? 290; S. & C. 1028.]

See notes, 22 5190, 6707.

5298. When exception must be made. The party objecting to the decision must except at the time the decision is made (1); and time may be given to reduce the exception to writing, but not more than thirty days beyond the term at which the verdict of the jury is rendered, or the cause is decided when tried, to the court (2). [84 v. 69; 51 v. 57, 291; S. & C. 1028.]

1. 12 O. S. 1; 10 O. S. 223; 22 O. S. 324; 24 O. S. 554, 564; 19 O. 300; 2C. C. R. 53. And the bill must show that the exception was taken, same cases. Error of law must be excepted to at the trial term, as the law stood in 1874, 32 O. S. 258; but exceptions to overruling a motion for a new trial can be taken when the order is made, 50. S. 51, though the ground of the motion was error of the court on the trial not excepted to at the time, Id. 2. Previous to the amendment of 1887 (84 v. 69), this part of the section read, "and time may be given to reduce the exception to writing, but not beyond the term." Generally, 3 C. C. R. 393, 398.

? 5299. Form of stating exception. No particular form of exception is required; and the exception must be stated, with the facts, or so much of the evidence as is necessary to explain it, and no more, and the whole as briefly as possible. [51 v. 57, ? 292; S. & C. 1028.]

Want of formality will not vitiate, 28 O. S. 561. No particular form of exception is required, 28 O. S. 561. Affidavits form no part of the record unless made so by bill of exceptions, 23 O. S. 192, and when copied in the record without a bill of exceptions can not be considered, 23 O. S. 192; 21 O. S. 82; 82 O. S. 276. An agreed statement of facts forms no part of the record unless made so by bill of exceptions, 16 O. 170; see 18 O. 122; and can not be made to supply the bill, 23 O. S. 577; nor can the certificate of the clerk, 6 O. 15; 23 O. S. 577; but where there was a motion for a new trial, made on the ground that the finding and judgment of the court was not supported by the law and the evidence, which was overruled, and all the testimony offered before the trial court was in an agreed statement of facts in writing carried into the record and found by the court to be all the testimony offered by the parties on the trial, it was held unnecessary, on overruling the motion, to re-embody the same in a bill of exceptions, 27 Ö. S. 252. Charge of court as well as evidence considered when contained in the bill, 32 O. S. 328, 494. When entered on the journal it is not a substitute for the bill, 31 O. S.

431, 536; 33 O. S. 444. The bill must set forth the charge of the court excepted to, 16 O. S. 344; and when the exception is to only part of the charge, the entire charge need not be set out, 38 O. S. 534. Exceptions taken to a general charge are not regarded on error unless the part objected to or the ground of objection is pointed out at the time, 25 O. S. 584; 33 O. S. 429. Special exceptions to charge not in all cases necessary, 40 O. S. 52. Giving the substance of a deposition is insufficient, 30 O. S. 104. Where the ground of reversal is that the verdict is not sustained by the evidence, it must affirmatively appear from the record that the bill of exceptions contains all the evidence, 4 O. S 156; contra, non-suit, 3 CC. R. 36; and though the bill alleges that it contains all the evidence, if it appears from it that material evidence referred to therein was omitted, judgment will not be reversed on the ground that the verdict is against the evidence, 33 O. S. 77. The bill must set out all the evidence relating to a motion for non-suit, 17 O. 439, and all the evidence relating to an alleged erroneous finding, 16 O. S. 328, and the evidence on exception to ruling on motion for a new trial, 22 O. S. 516; 17 O. 498. Evidence constituting part of the legal record need not be set out (written examination in probate court in proceeding by administrator against one suspected of having embezzled the effects of the estate), 19 O. S. 556; but the evidence rejected must be set out, 33 O. S. 444; 1 O. S. 253; its materiality must be shown, 5 O. S. 325, and it must be shown what it was proposed to prove by the question rejected, 33 O. S. 429, 444; 19 O. S. 573; but it is sufficient to state the facts which such testimony tended to prove, 22 O. S. 451; and "where a witness is rejected for incompetency to testify in a case, the court not having required the party producing the witness to state what he expected to prove by him, the bill of exceptions need not set forth what the witness would prove or was expected to prove in order to show that the party producing the witness had been prejudiced," 9 O..S. 1, 9; see 30 O. S. 472; but it is best to state the substance. of what the party offered to prove, and claimed he could prove, by such witness, Yaple's Pr., etc. 533; 17 O. 495; and necessary to do so when the ruling relates to the competency of the evidence and not of the witness, 9 O. S. 1; 11 O. S. 114, 2 O. S. 569, 574. Where evidence excepted to is improperly admitted, and all the evidence is not set forth in the bill of exceptions, nor all the facts which the evidence tended to prove, judgment should be reversed, 20 O. S. 517; 1 O. S. 141. Where a bill of exceptions merely states that there was evidence "tending to prove certain facts," the court can not infer that the evidence tended to prove any other fact, 2 C. S. C. R. 251; and when the statement in the bill of exceptions was that testimony was introduced tending to show, etc., this was held insufficient to advise the court whether the verdict was manifestly against the evidence so as to entitle the aggrieved party to a new trial, 2 O. S. 593. When the question was whether the court erred in finding that plaintiff had no authority to make the contract sued on, and the bill only set forth the evidence tending to prove the authority, and did not show whether there was or was not evidence tending to disprove it, it was held no ground of reversal was shown, 18 O. S. 419. Exhibits sufficiently identified if referred to and marked, though not actually attached to bill, 2 C. S. C. R. 37. An exhibit referred to as containing the

evidence is not available to show rulings of the court, 23 O. S. 167, 168. The bill must set out all the facts proven, 16 O. S. 60. The court can only look at the facts stated in the bill, 20 O. 34; 7 O. (Pt. 1) 212. Allegations of fact made in a motion for a new trial not supported by the record, nor made part thereof by the bill of exceptions, can not be considered upon proceedings in error, 30 0. S. 575. Judgment will not be reversed because erroneous instructions were given to the jury unless the record discloses some evidence tending to show the instructions were material, 4 O. S. 251. Objection that the jury was not properly sworn is of no avail where neither the bill nor the record shows the form of oath, 28 O. S. 669. An objection that counsel was not permitted to read to the jury from a scientific work will not be regarded unless it appears from the bill of exceptions that the passage was relevant or came within the legitimate scope of argument, 1 O. S. 286. Papers must be set out or attached to the bill of exceptions, or in some way connected therewith, so as to make them part of the bill, 1 O. S. 386; 12 Bull 68, and so described as to leave no doubt of their identity, 1 O. S. 409; but where such papers are used without objection in the circuit court, and the defendant in error afterwards prosecutes a petition in error in the supreme court, he can not there object that they are no part of the bill, 7 O. S. 23. Before a paper purporting to be a bill of exceptions can be regarded by a reviewing court, upon error, as part of the record, it must appear from the record, outside of such paper, that a bill of exceptions was in due time tendered to and allowed, etc., by the court and made part of the record, and the paper in question must be identified with reasonable certainty as the bill of exceptions which was thus made part of the record, 27 O. S. 597.

? 5300. How to be taken when facts appear of record. When the decision objected to is entered on the record, and the grounds of objection appear in the entry, the exception may be taken by the party causing to be noted at the end of the entry that he excepts. [51 v. 57, ? 293; S. & C. 1029.]

But a journal entry is not a substitute for a bill of exceptions, 31 O. S. 431. Where parties have consented to an entry showing that the bill was duly perfected they are estopped from showing it was untrue, 31 O. S. 103; see 2 C. C. R. 152, 155.

25301. When bill of exceptions may be taken. When the decision is not entered on the record, or the grounds of objection do not sufficiently appear in the entry, or the exception is to the opinion of the court on a motion to direct a non-suit, to arrest the testimony from the jury (1), or for a new trial for misdirection by the court to the jury (2), or because the verdict, or, if a jury is waived, the finding of the court is against the law and the evidence (3), or the omission or rejection of evidence, the party excepting must reduce his exceptions to writing,

and present the same to the trial judge, or judges, for allowance within thirty days from the end of the term at which the verdict is rendered, or the finding of the court is made (4); provided further that in case the trial judge or judges be absent from the district when such bill of exceptions is so prepared for allowance, then the same may be deposited with the clerk of the court for the examination and allowance of such trial judge or judges, who shall be required to sign and seal said bill of exceptions on or before the first day of the next ensuing term of court. [85 v. 181, 84 v. 69.]

1. 17 O. 439; 24 O. S. 83 (act 1858); 38 O. S. 389; 1 C. C. R. 9. 2, See 10 O. S. 223; 25 O. S. 584; 29 O. S. 448. 3. Before the passage of the act of 1858, the fact that the verdict was against the weight of the evidence was not ground of reversal, 6 O. S. 497. Error will lie to the ruling of the court upon questions of law where the case is submitted to the court in the same manner as if it had been submitted to the jury, 12 O. 482; 15 O. 58; 17 O. 128, 131; 14 O. S. 372. When a jury is waived, and issues of fact are submitted to the court, with a request to have conclusions of fact found separately from conclusions of law, a question as to the sufficiency of evidence upon which findings of fact were made by the court can only be raised by bill of exceptions, 30 O. S. 92. 4. Party must reduce exceptions to writing and present same, etc., for allowance within thirty days from end of term, etc. Entitled to entry of allowance, etc., placed on journal, 3 C. C. R. 393.

25302. Allowance, signing, and record. If the exception be true, or, if it be not true, then after it is corrected (1) the trial judge or a majority (2) of the judges composing the court must allow and sign it before the case proceeds (3), or, if the party consents within thirty days after the term (4); or in case of the absence of the trial judge or judges from the district, as provided in the preceding section, then on or before the first day of the next ensuing term. The bill of exceptions shall be filed (5) with the pleadings, and, if the party request it, made a part of the record, but not spread upon the journal; and if it is to be signed after the term, the journal must be kept open, and the allowance and signing thereof entered thereon as of the term (6). [85 v. 182.]

1. 20 O. 119. The reviewing court, however, can not amend the record, 27 O. S. 44. A bill of exceptions regularly signed, etc., is conclusive upon everything therein contained, 5 Bull 14. 2. W. 73; though the record does not show they were present at the trial, 28 O. S. 554. When signed by only one of the three judges composing the court it will be disregarded, though the journal entry recites that it is allowed and signed, etc., 44

O. S. 59; 15 Bull 171; see 43 O. S. 63. Signing by two judges was held sufficient under Swan's Stat. 676, when the court was equally divided, 18 O. 266. 3. It must be signed, 43 O. S. 63. Presenting the bill at the trial term is not sufficient, 13 O. S. 271. Mandamus is the proper remedy to compel its allowance, etc., 43 O. S. 16. The application for mandamus should be accompanied by the bill, 22 Ó. S. 207. Where the answer shows that defendant is willing to sign a true bill, and denies that the bill presented is a true one, the writ will be refused, Id. 4 O. 351; but where an alternate writ of mandamus commands a judge of an inferior court to allow and sign a certain bill of exceptions filed with the petition in the case and averred to be true, and which was tendered to him in due time, or to show cause why he does not sign the same, and he fails to answer, or answers and fails to show a sufficient cause, the peremptory writ should command him to sign the particular bill named, 43 O. S. 16; McIlvaine, C. J., and Okey, J., dissenting. Formerly the statute required the bill to be sealed as well as signed, 73 v. 140; 35 O. S. 482. That is also necessary now; see 5301 as amended, 85 v. 181. 4. By the "party' who may consent to the extension for thirty days is meant the party who excepts, 43 O. S. 23. Before the enactment of this section, where the bill of exceptions was taken after the trial term, upon the overruling of a motion for a new trial, the judgment would not be reversed for errors occurring at the trial, unless it appeared from the whole record that the verdict was contrary to the law or evidence, 29 O. S. 557; 32 O. S. 258, 415. 5. At the trial term, 32 O. S. 415, or thirty days thereafter, 5 Bull 852; 9 Rec. 482. The record is conclusive as to the time of filing, 6 O. S. 12. An omission to file the bill with the clerk during the term will not invalidate it. "When duly perfected and ordered to be made part of the record, it is in law to be regarded as part of the record whether it comes into the actual possession of the clerk during the term or not," 31 O. S. 103. 6. The allowance and execution must appear in the journal, 26 O. S. 643; 27 O. S. 597; 40 O. S. 112, 113, of the term at which the case was tried and terminated, 36 O. S. 614; 12 Bull 286; but the necessary entry may be supplied by a nunc pro tunc order, 37 0. S. 147; 40 O. S. 110, 111. The date of allowance should be shown by the bill, 8 O. 117; see 3 C. C. R. 393.

5303. Immaterial exceptions. No exception shall be regarded unless it is material and prejudicial to the substantial rights of the party excepting. [51 v. 57, ? 295; S. & C. 1029.]

Prejudice must be shown, 21 O. S. 536, 546; 33 O. S. 444; 15 O. S. 511; 11 O. S. 114; 2 O. S. 570. A bill of exceptions can not be taken before arbitrators, 42 O. S. 543; nor in an agreed case under5207, 22 O. S. 149; nor under 2 95, 96 and 97, relating to fugitives from justice, 34 O. S. 316. The provisions providing for exceptions have no application to final judgments or orders, 26 O. S. 372; 12 O. S. 402.

25304. Withdrawing exceptions. Exceptions taken to the decision of a court of record may, by leave of such court, be withdrawn from the files by the party taking the same, at any time before proceedings in error