Sherman v. Nixon

216 P. 727, 37 Idaho 358, 1923 Ida. LEXIS 139

Opinion

MCCARTHY, J.

— Respondent has moved to strike from the transcript instructions given and instructions requested and refused. These all appear °in the clerk’s transcript. The ground of the motion is that they have not been incor poi’ated into a reporter’s transcript or bill of exceptions. Following a suggestion in Stringer v. Redfield, 34 Ida. 378, 201 Pac. 714, based upon the amendment of the statute in 1919 (C. S., sec. 6879), this court expressly held in Marnella v. Froman, 35 Ida. 21, 204 Pac. 202, that when instructions given and refused are filed with the clerk and included in the clerk’s transcript, in obedience to the praecipe, and duly certified by the clerk, they are subject to review on appeal. Nothing contrary to this is found in Sweaney & Smith Co. v. St. Paul etc. Co., 35 Ida. 303, 206 Pac. 178, the ground of that decision being that the instructions were not called for by the praecipe nor certified by the clerk. In the present case it appears that the praecipe called for the instructions given and requested instructions refused and that they are covered by the certificate of the clerk. On the authority of the above decisions the motion to strike the instructions should be and is denied.

Dunn, William A. Lee and Wm. E. Lee, JJ., concur.