A petition for rehearing has been filed, urging that we erred in not finding that appellants were prejudiced by the trial court's failure to instruct the jury before the arguments of counsel were made. We have re-examined the record and briefs on that assignment and are satisfied no error was committed and that appellants were in no way prejudiced by the action of the court.
The failure of the opinion to mention the written request, to have the instructions given before arguments, is due to the failure of counsel to give the folio reference as required by our rules (Rule 42; State v. Cox, 55 Idaho 694, 700,46 P.2d 1093). Further examination of the record discloses a document that was filed in the trial court entitled "Requestfor Special Verdict." This paper requests the court to submit to the jury two special interrogatories and concludes as follows:
"And the defendant further requests that the court instruct the jury in said cause prior to argument by counsel for any of the parties."
The record does not show that this request was ever called to the attention of the trial judge, nor does it show any ruling thereon. If it was of the importance to appellant that counsel now urges, it should have been brought to the court's attention before or when the judge directed counsel to "proceed with the argument." *Page 180
The clerical error in writing the figures $496.04 instead of $500, as intended, will be corrected in the opinion before theremittitur goes down.
Petition denied.
Givens, Morgan and Holden, JJ., concur.
Budge, J., took no part.