Ayres v. Blevins

• Decision Date: 17 December 1901
• Citation: 28 Ind.App. 101,62 N.E. 305
• Parties: AYRES v. BLEVINS et al.
• Court: Indiana Appellate Court

28 Ind.App. 101

62 N.E. 305

AYRES

v.BLEVINS et al.

Appellate Court of Indiana, Division No. 2.

Dec. 17, 1901.

Appeal from circuit court, Owen county; George W. Grubbs, Judge.

Action by Alexander C. Ayres against Samuel M. Blevins and others. From a judgment for defendants, plaintiff appeals. Reversed.

Lee & Grimes and Fowler & Spangler, for appellant. Willis Hickam and Duncan & Batman, for appellees.

ROBY, J.

The first, second, and third assignments are that the court erred in overruling appellant's demurrers to the first, second, and third paragraphs of answer, respectively. There were amended first, second, and third paragraphs of answer filed. The assignments do not, therefore, present any question, the original pleadings being taken out of the record by the amendments. Section 650, Horner's Rev. St. 1901 (section 662, Burns' Rev. St. 1901); Barnes v. Pelham, 18 Ind. App. 166, 47 N. E. 648.

The remaining assignment is that the court erred in overruling the appellant's motion for a new trial. Grounds for a new trial discussed relate to the action of the court in permitting the appellees to amend their answers after the evidence had begun, in denying appellant the right to open and close, and in the giving and refusal to give instructions. Two bills of exceptions designed to save these questions were presented to the trial judge, and have been copied by the clerk in making up the transcript. It does not appear that they were filed after being signed, and they are, therefore, not properly a part of the record. Richardson v. League, 21 Ind. App. 429, 52 N. E. 618;Beall v. Traction Co. (Ind. Sup.) 60 N. E. 1085.

There seems to have been an attempt to bring the instructions into the record under the provisions of the statute. Burns' Rev. St. 1901, §§ 542, 544 (Horner's Rev. St. 1901, §§ 533, 535). There are three methods in which to make instructions given or refused, a part of the record: (1) By order of court; (2) by bill of exceptions; (3) under the statute above cited. When the third method is followed, it must affirmatively appear that exceptions were written upon the instructions, dated and signed by the judge, and filed. Riley v. Allen, 154 Ind. 176, 56 N. E. 240. Where the instructions are incorporated in the bill of exceptions, the provisions of sections 533, 535, Horner's Rev. St. 1901, do not apply. Burk v. Andis, 98 Ind. 59, 63;Railroad Co. v. Dunn, 138 Ind. 18, 36 N. E. 702, 37 N. E. 546. In so far as Moore v. Combs, 24 Ind. App. 464, 56 N. E. 35, holds otherwise, it is overruled. The record does not show that the instructions were filed after being signed by the trial judge. They do not, therefore, become part of the record under the statute. A bill of exceptions containing the reporter's longhand transcript of the evidence was presented to and signed by the judge within the time limited, and, after being so signed, was filed in the clerk's office, and is certified to this court. The evidence is therefore in the record. Breedlove v. Breedlove (May term, 1901) 61 N. E. 797.

The action was brought to recover the amount of two promissory notes executed by appellees to the Aultman Company, a corporation, in settlement for a stone crusher. A written order was given for the crusher, the material terms of which are as follows: “Post Office: Ellettsville, State of Ind. Date: June 3, 1896. The Aultman Company, Canton, Ohio: Please ship to Blevins & Steele, at Ellettsville Station, county of Monroe, state of Ind., about the 15th day of June, 1896, via route you consider cheapest and best, one No. 3 1/2 Aultman rock crusher, complete, with 14 steel elevator and steel trucks. On its arrival we agree to pay freight charges, and at our own expense for power, cartage, assistance, etc., give same a fair and thorough trial under conditions stipulated, and under directions of your agent. If said crusher equals the capacity claimed, viz. No. 3 1/2, 12 to 16 tons per hour. Man to be furnished free of charge by the Aultman Co. We agree to pay the Aultman Company, or order, six hundred and seventy-five dollars, payable as follows: Within eighteen months from date of acceptance. Interest, 6%. Above price is for the crusher f. o. b. cars Ellettsville. If the crusher does not do the work represented above, then we agree to notify you in writing at Canton, Ohio, of such failure; and if, within ten days from receipt of such notice, you fail to make crusher do the work represented above, then you are to refund the freight charges, and receive back the crusher at Ellettsville R. R. station, from which it was taken, and cancel this order. It is also further understood that this order embodies the entire understanding, is not subject to countermand, and is not to be affected by any verbal agreement.” The first and second paragraphs of answer count upon an alleged breach of the warranty contained in this instrument. The third paragraph makes the order an exhibit. Its...