Bougher v. Strauss Brothers Company

• Decision Date: 10 May 1929
• Docket Number: 12,341
• Parties: BOUGHER, EXECUTRIX, v. STRAUSS BROTHERS COMPANY ET. AL
• Court: Indiana Appellate Court

166 N.E. 250

89 Ind.App. 474

BOUGHER, EXECUTRIX, v. STRAUSS BROTHERS COMPANY ET. AL

No. 12,341

Court of Appeals of Indiana

May 10, 1929

Rehearing denied June 20, 1929.

From Whitley Circuit Court; Howard L. Townsend, Special Judge.

Action by the Strauss Brothers Company and another against Emma Bougher as executrix of the will of Frank Bougher, deceased. From a judgment for plaintiffs, the defendant appealed.

Affirmed.

Eggeman Reed & Cleland, E. K. Strong and James P. Murphy, for appellant.

Leonard Rose & Zollars, Whiteleather & Bloom, Robert R. McNagney and Phil M. McNagney, for appellees.

OPINION

NICHOLS, J.

Claim in two paragraphs filed in the Allen Circuit Court by appellees for damages, wherein it was charged by appellees that appellant unlawfully held over the possession of certain real estate, the property of appellees, after the expiration of the term stated in the lease between appellant's decedent and appellees. Said cause was venued to Whitley county and Honorable Howard L. Townsend was appointed special judge.

The cause was submitted to a jury for trial, which resulted in a verdict for appellees in the sum of $ 7,951.50, upon which the court rendered judgment in favor of appellees against appellant.

The error assigned for reversal is the court's action in overruling appellant's motion for a new trial, under which she concedes that she has only presented questions as to the court's action as to the instructions.

The instructions, the action of the court as to which is challenged, were not made a part of the record by a bill of exceptions. After the jury's return of the verdict, the following entry appears in appellant's statement of the record: "It is ordered by the court that all instructions tendered, whether given or refused, are ordered filed and are now filed herein in the following words and figures to wit." (Our italics.) Then follow two sets of instructions, one tendered by appellees and the other by appellant. It readily appears by this statement that the only instructions filed were those tendered. It does not appear whether others were given. Appellees contend that before any error can be predicated upon giving or refusing instructions, it must affirmatively appear that all the instructions given are in the record, citing to sustain their contention, with other cases, Hart v. Williams (1922), 77 Ind.App. 454, 455, 133 N.E. 885; Hammond, etc., R. Co. v. Kasper (1919), 71 Ind.App. 328, 330, 123 N.E. 360; Welch v. State (1924), 195 Ind. 87, 90, 143 N.E. 354; Chicago, etc., R. Co. v. Wysor Land Co. (1904), 163 Ind. 288, 293, 69 N.E. 546.

In the Hart case this court stated: "Appellee calls attention to the fact that the instructions given and refused were not made a part of the record by a bill of exceptions, and that while such instructions were ordered filed and made a...