majority">RICE, C. J.

This is an appeal from a final judgment. The record contains no bill of exceptions or reporter’s transcript of the evidence. Appellants’ specifications of error relate solely to the giving of certain instructions by the court and to the refusal to give certain instructions requested by appellants.

In the case of Minneapolis Threshing Machine Co. v. Peterson, 31 Ida. 745, 176 Pac. 99, it is said: “Unless the alleged errors of the court in giving and refusing instructions to the jury are presented by the reporter’s transcript, they can only be reviewed when saved by a bill of exceptions.”

After the decision in that case, the court had under consideration what is now C. S., sec. 6879, in the ease of Steinour v. Oakley State Bank (on rehearing), 32 Ida. 91, 177 Pac. 843.

After the decision in the Steinour case, C. S., see. 7163, was amended to read as follows:

“On appeal from a final judgment the appellant must furnish the court with copy of the notice of appeal, of the *380judgment-roll and of any bill of exceptions or reporter’s transcript prepared and settled as prescribed in section 6886, upon which the appellant relies, and of all papers, records and files designated in the praecipe filed by appellant with the clerk of the (district court.”

The amendment consisted of adding to the section as it formerly stood the words in italics in the above quotation. It may be and probably is true that in cases in which the trial judge has filed with the clerk the instructions given and instructions requested by the parties, with his indorsements thereon, and they have been included in the record in response to a praecipe filed by appellant, they may be subject to. review under the two sections above mentioned without being preserved in a formal bill of exceptions.

But in this case the praecipe did not call for the instructions given or requested. The clerk in his certificate states that the record “is a true and correct transcript of the proceedings therein contained, and contains in full the papers included in the judgment-roll in the said action, as well as a copy of the praecipe.”

The instructions are not part of the judgment-roll. It is clear that the purported instructions in the record are not properly included therein, and are not covered by the certificate of the clerk. Under any view we may take of the statute, they cannot be reviewed on this appeal.

The judgment is affirmed, with costs to respondent.

McCarthy, Dunn and Lee, JJ., concur.Budge, J., concurs in the conclusion reached.

Citation profile

How this case has been treated — in progress