
    (July 2, 1923.)
    E. H. SHERMAN, Respondent, v. S. M. NIXON, Appellant.
    [216 Pac. 727.]
    APPEAL from the District Court of the Ninth Judicial District, for Fremont County. Hon. James G. Gwinn, Judge.
    Action for conversion. Judgment for plaintiff. Defendant appeals. Motion to strike court’s instructions from clerk’s transcript.
    
      Denied.
    
    Jones, Pomeroy & Jones, for Appellant, file no brief.
    Miller & Ricks, for Respondent.
    The instructions given to the jury are no part of the judgment-roll and no part of the record on appeal. (C. S., sees. 6901, 7173; 1921 Sess. Laws, p. 344.)
    If instructions can be taken to this court without being incorporated into a bill of exceptions, there is no method provided by law for their identification or certification and there would be no method for protecting them in the record. If the instructions of the court to the jury are settled under C. S., secs. 6881, 6882 or 6886, they would be identified and certified by the judge who tried the cause. The instructions in this case form no part of the record proper unless incorporated therein by a bill of exceptions. (Swemey & Smith Co. v. St. Paul Fire & Marine Ins. Go., 35 Ida. 303, 206 Pac. 178; C. S., secs. 6901, 7163; 1921 Sess. Laws, p. 344; 2 R. C. L. 137, note 17; 4 Stand. Proc. 316, notes 84 and 85.)
   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 incorpoi’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.  