portunity to except to same before they were given; but such instructions were excepted to after they had been given by the court. The above appeared from the printed record, and was substantiated by the frank statement of respondent's counsel, made in open court, to the effect that the trial court did wholly disregard the rules pertaining to the settling and giving of instructions. In the case now before us appellants' attorney admits that because of the time that has elapsed, he has not a clear memory as to what took place at the trial. states his recollection to be that, after the evidence was in, a recess was taken, during which the trial court prepared its instructions; that no instructions were asked by either party; that, when court reconvened, a copy of such instructions was given to each attorney; that the attorneys were given time to read such instructions; that neither party made any objection to

He

the instructions; and that the instructions were read to the jury. No exceptions were at any time taken to the instructions; nor is there any claim on the part of the appellants but that they fairly and fully presented the law of the case.

While the trial court did not follow rules 25 and 27, as it should, yet we do not believe that there was any wilful intention to violate such rules. We think it can fairly be assumed that, if either party had expressed a desire to except to any instructions, the court would then have proceeded in accordance with

such rules.

It is clear that the rights of appellants were in no manner prejudiced by the action of the trial court. This court, therefore, should not and will not remand the case for a new trial. That portion of appellants' reply brief objected to by respondent will be disregarded by this court.

superior body:

a. View that violation of rule constitutes error, 52.

b. View that violation of rule does

not constitute error, 54.

c. Rule in South Dakota, 55.

d. Rule in Tennessee, 55.

e. Rule in England, 55.

II. Rule established by trial court:

a. View that violation of rule con

stitutes error:

1. General rule, 56.

1. Rule established for trial court by superior body.

a. View that violation of rule constitutes

error.

For a trial court to violate a rule which has been prescribed by a superior court, or which has been promulgated as the result of some statutory or constitutional provision, is held in some jurisdictions to be error, and to constitute ground for reversal. District of Columbia v. Roth (1901)

2. Application of rule, 56.

b. View that violation of rule does not constitute error:

1. General rule, 59.

2. Application of rule, 60.

c. Rule in Illinois, 63.

d. Rule in Missouri, 64.

e. Rule in Montana, 64.

f. Rule in New Jersey, 64. g. Rule in Pennsylvania, 65. III. Rule in New York, 66.

18 App. D. C. 547; Talty v. District of Columbia (1902) 20 App. D. C. 489; Baker v. Blood (1880) 128 Mass. 543; Haley v. Eureka County Bank (1889) 20 Nev. 410, 22 Pac. 1098; Chester Traction Co. v. Philadelphia, W. & B. R. Co. (1897) 180 Pa. 432, 36 Atl. 916.

A rule made as the result of legislative authority has the force of law, and cannot be disregarded in a particular case. Talty v. District of Columbia (1902) 20 App. D. C. 489; Baker v. Blood (1880) 128 Mass. 543.

Such a rule may not be disregarded unless power to that effect is contained in the rule itself, or in the act authorizing promulgation thereof. District of Columbia v. Roth (D. C.) supra.

In District of Columbia v. Roth (D. C.) supra, the court of appeals denied a motion to vacate its order dismissing an appeal, the dismissal being on the ground that its rule limiting the time for the filing of a transcript on appeal had been violated by reason of an unauthorized extension of the trial judge. The rule specified, for such purpose, a period of forty days from the time the appeal was entered, unless the time was extended by the court below or the judge thereof, by whom the decree had been rendered. An order for an additional period of time for filing the transcript having been procured after the expiration of the period specified in the rule, it was held that such an extension did not comply with the rule, and that there was no power in the trial court to dispense with a rule of court unless power to that effect was reserved in the rule itself, or in the statute authorizing the promulgation thereof.

In Talty v. District of Columbia (D. C.) supra, it appeared that a rule of the court of appeals required that intention to apply for a writ of error should be noted at the trial, and that the defendant, within three days thereafter, should present his bill of exceptions to the court, and that, "if properly prepared, or after correction. by the judge, shall be signed by the judge, within two days from the date of the judgment or sentence imposed, and he shall file the same in the cause immediately after signing the same." The bill of exceptions being shown by the record to have been presented to the court, signed and filed, two days after the time specified by the rule, the writ of error was dismissed. This rule, said the court, being made by the express authority of the act of Congress, had the force of law, and could not be dispensed with by the trial court in a particular case.

In Baker v. Blood (Mass.) supra, the citation on which the decree ap

pealed from was based was served by publication, the last publication having been but one day before the court at which the decree of removal was granted. A rule prescribed by the appellate court required that when the service of a citation was by publication, the last publication should be "two days, at least, before said court." The decree was set aside, the court saying that the power of judges to frame forms for process was limited to cases where no form was "prescribed by statute or the rules of the court;" and that the rule, having been made under statutory directions, could not be disregarded to suit the circumstances of a particular case.

In Haley v. Eureka County Bank (1889) 20 Nev. 410, 22 Pac. 1098, it was held to be error for the district court to admit testimony of an oral agreement between the opposing attorneys that no default judgment should be taken. A statute provided as follows: "An attorney and counselor shall have authority . . . to bind his client, in any of the steps of an action or proceeding, by his agreement, filed with the clerk, or entered upon the minutes of the court, and not otherwise." A rule of court supplemental to the statutory provision provided: "No agreement or stipulation between the parties in a cause, or their attorneys, in respect to the proceedings therein, will be regarded, unless the same shall be entered in the minutes, in the form of an order, by consent, or unless the same shall be in writing, subscribed by the party against whom the same shall be alleged, or by his attorney or counsel." The court said: "It was the duty of the district judge to enforce the rule, and he erred in overruling the objections to the testimony in relation to the verbal stipulation. It is not a case where the question was left to his discretion. There was a positive statute, a rule prescribed and adopted by this court for the government of the district court, which could not be disregarded. The rule in question applies to all cases. There is no exception, no qualification, no discretion. The defendants were guilty of negli

gence in placing any reliance upon the oral agreement. They knew that such an agreement did not, under the statute and rule of court, have any binding effect." The court said further that rules adopted merely for the convenience of the court may some. times be disregarded; but the rule was not of such a character, for it was shown by the method of the adoption of the rules that they were intended to be supplemental to the provisions of the statute.

In Chester Traction Co. v. Philadelphia, W. & B. R. Co. (1897) 180 Pa. 432, 36 Atl. 916, the supreme court set aside a decree because it was entered as the result of a procedure which was in direct violation of the rules of the supreme court. That court was empowered by statute to make rules of procedure for the subordinate courts of the state. The court below, the court of common pleas of Delaware county, refused to obey these rules, and adopted its own rule, making an announcement to that effect, which stated, in addition, that parties who desired the benefit of the supreme court rules must take their cases out of court and submit them to a referee.

b. View that violation of rule does not constitute error.

In a few jurisdictions violation by a trial court of rules of practice prescribed by a superior court has been held to constitute no ground for reversal. Poultney v. LaFayette (1838) 12 Pet. (U. S.) 472, 9 L. ed. 1161; Wittkowski v. Watkins (1881) 84 N. C. 456; Greene v. Harris (1874) 11 R. I. 5.

In Poultney v. LaFayette (U. S.) supra, the court having issued a rule on the complainants to show cause why the defendants should not be allowed until the first day of the next term to make their appearance and defense, etc., the complainants moved that they might be allowed to proceed according to chancery practice. This motion was overruled, whereupon the complainants sought a writ of mandamus to compel such action on the part of the circuit court. The rules of

chancery practice mentioned were said to be the rules prescribed by the Supreme Court for equity courts of the United States, and were obligatory on circuit courts. It was said: "We think the court did right in refusing this motion. Every court of equity possesses the power to mold its rules in relation to the time and manner of appearing and answering, so as to prevent the rule from working injustice; and it is not only in the power of the court, but it is its duty, to exercise a sound discretion upon this subject, and to enlarge the time whenever it shall appear that the purposes of justice require it. The rules prescribed by this court do not, and were not intended to, deprive the courts of the United States of this well-known and necessary power; and the facts stated in the affidavit before referred to certainly presented a case in which it was proper to exercise it.”

In Wittkowski v. Watkins (1881) 84 N. C. 456, the defendant objected that there had been a failure to observe the rule of court directing how and when the issues for trial should be settled. This rule had been adopted by the supreme court with the purpose of simplifying trials in the superior court; but it was held that it was intended to be merely directory, and that any party might compel enforcement of the rule by calling the matter to the attention of the court, or it might be waived. From the circumstances of the present case it was considered that the court below might fairly have presumed, as it did, that observance of the rule had been waived by mutual consent of the parties.

In Greene v. Harris (R. I.) supra, the court below allowed the amendment of a plea to a bill in equity, which, it was insisted, was not permitted by the rules of the supreme court. It was said: "While the rule does not provide for amending a plea as a matter of right, it would be contrary to all the principles of equity practice to consider it as preventing the court from allowing an amendment in cases where the justice of the case requires it, and it may be pre

sumed the court would not allow it in any other case."

c. Rule in South Dakota.

v.

In South Dakota it has been held that wilful disregard of court rules promulgated under the direction of the legislature constitutes grounds for reversal. PRESHO STATE BANK NORTHWESTERN MILL. Co. (reported herewith) ante, 48. But in the reported case (WEIBEL V. GARDNER, ante, 50) a distinction is drawn between a violation of the rules that is wilful and one that is not; and it is held that, in the latter instance, the error is not ground for reversal if the rights of the complaining party are not prejudiced thereby.

d. Rule in Tennessee.

In Tennessee there are two decisions which support the view that it is error for a trial court to violate rules of practice which have been established by a superior court or by the authority of a statute.

In Maultsby v. Carty (1850) 11 Humph. 361, it was held to be error to disregard a rule of court requiring that a deposition, in order to be read, must have been filed at a certain time. This rule, made by the chancellors in pursuance of an act of assembly, was said to be as obligatory and inflexible as a statute.

In Fanning v. Fly (1865) 2 Coldw. 486, it was held that the court below erred in refusing a motion for a new trial where the rules of practice had been disregarded, in that the cause had been called up out of order and without notice, and the plaintiff in error thrown off his guard. It was said: "The reluctance with which this court interferes in matters of practice with the discretion of the inferior courts is too well settled now to admit of controversy. But this discretion must always be a legal, and not an arbitrary, discretion. If the latter, and it affects the merits of the action, it is the duty of this court to interpose for the protection of the right."

In Marsh v. Crawford (1851) 1 Swan, 116, there is an opinion to the

contrary, although it did not clearly. appear by whom the rule in question was established. In that case it seems to be held that there was no error on the part of the chancellor in allowing exceptions to be filed to an answer after the expiration of the time provided therefor by a statute and by a rule of practice in chancery. Such rules, it was said, are not so inflexible that they may not be relaxed by the chancellor on sufficient cause shown.

e. Rule in England.

In England there are several decisions upholding the view that it is harmful error for a trial court to violate a rule of practice which has been made by a superior court.

In Christ's Hospital v. Grainger (1845) 10 Jur. 37, the Lord Chancellor reversed an order of the vice chancellor, granting the plaintiff leave to amend a bill, where there was no compliance with an order requiring an affidavit showing that the amendments were material, and that they could not have been introduced at an earlier period.

In Wilson v. Parker (1846) Coop. t. Cott. 346, 47 Eng. Reprint, 888, the Lord Chancellor conditionally discharged an order of the vice chancellor, which was not in adherence to the practice established by the orders, in the matter of filing an answer to a bill. The injury threatened to the defendant by this course was to be averted by the condition annexed to the Chancellor's decree.

In The Cashmere (1890) L. R. 15 Prob. Div. 121, 59 L. J. Prob. N. S. 57, 62 L. T. N. S. 814, 38 Week. Rep. 623, 6 Asp. Mar. L. Cas. 515, the divisional court, although it dismissed the appeal on other grounds, as beyond its jurisdiction, declared that the county court erred in following its own local practice as against the general rule for county courts in the matter of the costs of witnesses.

A contrary opinion, however, was ordered in Ferrand v. Bradford (1856) 8 DeG. M. & G. 93, 44 Eng. Reprint, 324, 21 Beav. 422, 52 Eng. Reprint, 918, 922, 25 L. J. Ch. N. S. 389, 2 Jur. N. S. 360, 4 Week. Rep. 350. In that case

it was held that the master of the rolls had properly dispensed with certain general orders regarding the removal of a bill from file and the payment of costs, the court saying that such action was correct when required by circumstances and the justice of the

case.

II. Rule established by trial court.

a. View that violation of rule constitutes

error.

1. General rule.

In some jurisdictions violation, by a trial court, of its own rules, has been held to be error, constituting ground for relief on appeal.

District of Columbia. Drew v. Hogan (1905) 26 App. D. C. 55, 6 Ann. Cas. 589. Compare Johnson-Wynne Co. v. Wright (1906) 28 App. D. C. 375. Indiana. Magnuson v. Billings (1899) 152 Ind. 177, 52 N. E. 803. Iowa. Burlington & M. River R. Co. v. Marchand (1858) 5 Iowa, 468. Louisiana. Walker V. Ducros (1866) 18 La. Ann. 703; Berthelot v. Hotard (1906) 117 La. 524, 42 So. 90; Levy v. Michon Bros. (1918) 142 La. 825, 77 So. 644; Re Wenger (1920) 147 La. 422, 85 So. 62.

hered to; while, on the other hand, by their rigid observance, annoyance from delay, or from other sources, would be of less frequent occurrence. Courts are clothed with power to prescribe such rules of proceeding appertaining to their jurisdiction as may be necessary and useful in the exercise of their functions, and which have not been established by law. These rules become, in effect, laws, which may be modified or repealed by the power from which they emanate, but they ought not to be relaxed or suspended to meet temporary convenience, or be accommodated to the ever varying circumstances of time. The evils that would arise from a vacillating and uncertain operation of such rules are more and greater than any that would, by such lax operation, be obviated."

The fact that a judge has not adopted the rules established by his predecessor furnishes no excuse for the violation of the rules, which remain the rules of the court until rescinded. Berthelot v. Hotard (1906) 117 La. 524, 42 So. 90.

In Levy v. Michon Bros. (1918) 142 La. 825, 77 So. 644, some emphasis was laid on the fact that the rule in question had been established by a full court of three judges, while the viola. tion was the work of only one. And there were similar remarks in the case of Thompson v. Hatch (Mass.) supra.

2. Application of rule.

In Drew v. Hogan (1905) 26 App. D. C. 55, 6 Ann. Cas. 589, it was held that the trial court erred in issuing a restraining order and continuing the same without requiring the filing of an undertaking, thereby violating one of its equity rules, which made such a requirement a condition precedent to the issuance of an injunction or restraining order. The court said that this rule, which was for the protection of the defendant, had the force of a statute, and could not be dispensed with to suit the circumstances of a particular case; and consequently an order adjudging the defendants in contempt for violating the restraining order was reversed. But in JohnsonWynne Co. v. Wright (1906) 28 App.