
    Thomas E. Berry, et al., vs. George Smith, Sheriff.
    
    i. Exception — This case was originally decided with the fact in view, as shown by the record, that no bill of exceptions had been filed; nor had exceptions to the giving of instructions been saved as provided by § 19, p. 842, Statutes of 1890; and the record being incorrectly stated by the appellant, in his motion for a re-hearing, legal questions sought to be raised as applicable thereto, will not be considered.
    
      Motion for Be-hearing.
    
    Action in replevin, by Thomas E. Berry and another, against George Smith, as sheriff. -Judgment for defendant in lower court. Plaintiff appeals. Affirmed. On motion for re-hearing.
    Motion denied.
    
      Berry A Hess and Amos Green & Son, for the motion.
    
      Leslie P. Boss and Herod & Widmer, contra.
   The opinion of the court was delivered by

Scott, J.:

On February 2, 1894, this court affirmed the judgment of the court below in this case. On the 28d day of February, 1894, the appellant filed a motion for review and re-hearing, assigning in said motion three alleged errors which could, appropriately, have been stated in one.

The appellants complain that it was error for the court to hold that, unless exceptions were saved to the giving of instructions, as provided by § 19, page 842, Statutes of 1890, that it is the duty of the court to overrule a motion for a new trial and to set aside the verdict of the jury,-assigning the giving of such instruction as erroneous, notwithstanding the law might have been incorrectly stated in such instruction. Appellants further argue that the provision of the statute referred to is only a cumulative method of saving exceptions to instructions without a bill of exceptions, and does not take away the right to except to the giving of instructions at the time they are given by the court, and aftenvards, within the time provided, embodying the same in a bill of exceptions, signed by the court and made a part of the record, all of which appellants allege was done in this case. It is contended, also, that the instructions, or such ones as are complained of, were excepted to, and exceptions presei'ved and properly and legally brought before the court, and should have been considered under the assignment of error filed in the case. The statements of the record, by the appellants, is untrue. There is not an exception of any kind saved in the record from first to last. The record utterly fails to disclose an. exception, of any kind, to the giving of instructions; hence it is unnecessary for the court to discuss the legal propositions attempted to be raised. Indeed, a further discussion would not only be fruitless, but bad taste, since the truth of the appellant’s contention is clearly disproved by the record in the case.

This case was originally decided, by this court, having in view the fact, as shown by the record, that no bill of exceptions had been filed, and it is a surprising thing to the court that the appellant makes any such contention, in his motion for a rehearing. Neither had exceptions been saved to the giving of instructions, as provided by § 19, page 842, Statutes of 1890, and in the absence of either, or in the absence of exceptions of any kind, the court can do nothing except as stated in our former decision. There is no question presented in the motion for a rehearing worthy of any further attention of this court.

The motion will therefore be denied.

All the Justices concurring.  