Aufdencamp v. Smith

• Citation: 96 Ind. 328
• Decision Date: 19 June 1884
• Docket Number: 10,494
• Parties: Aufdencamp v. Smith
• Court: Indiana Supreme Court

96 Ind. 328

Aufdencamp v. Smith

No. 10,494

Supreme Court of Indiana

June 19, 1884

From the Ohio Circuit Court.

H. D McMullen and D. T. Downey, for appellant.

W. S Holman, W. S. Holman, Jr., and J. B. Coles, for appellee.

OPINION

Bicknell C. C.

The appellee had a verdict against the appellant for $ 500 for the breach of a marriage contract. The court overruled a motion by the appellant for a new trial, and rendered judgment on the verdict.

The appellant assigns as error the overruling of his motion for a new trial. The reasons alleged for the new trial are, that the verdict is not sustained by sufficient evidence and is contrary to law, error in excluding and admitting testimony and in sustaining appellee's motion to suppress parts of a deposition, and in giving instructions to the jury.

The record presents no question as to the instructions, because it fails to show that they were filed or directed by the court to be made part of the record. Hadley v. Atkinson, 84 Ind. 64; Heaton v. White, 85 Ind. 376; McIlvain v. Emery, 88 Ind. 298. "Instructions, in order to be made a part of the record, * * must be filed as a part of the record, and the fact of such filing must be shown in the transcript." O'Donald v. Constant, 82 Ind. 212. Nowlin v. Whipple, 89 Ind. 490.

In this case, the original bill of exceptions, which was brought up by certiorari, contained no instructions, but in the record the clerk has left out a part of the original bill, and has inserted in its place, between the conclusion of the evidence and the signature of the judge, several instructions, commencing thus:

"Anna M. E. Smith v. George Helfenkamp. Gentlemen of the jury:" There is nothing to show that these instructions were filed, and they are not entitled as of the cause from which this appeal was taken. The appellant procured a certiorari, from the return of which it appears that after this cause was submitted, the date of the submission being November 28th, 1882, the appellant, at the October term, 1883, of the Ohio Circuit Court, made an application to that court for the entry of a nunc pro tunc order in relation to the filing of said instructions, and that on such application the court made a special finding of the facts and entered thereon the following order as a conclusion of law, to wit:

"That the court made no order directing the filing of said charges, and that the defendant is not entitled to an order now for then directing the filing of said charges, and that the plaintiff recover her costs therein."

There is nothing in this proceeding that makes the...