Childress v. Callender

• Decision Date: 08 December 1886
• Docket Number: 12,684
• Citation: 9 N.E. 292,108 Ind. 394
• Parties: Childress, Administratrix, v. Callender et al
• Court: Indiana Supreme Court

9 N.E. 292

108 Ind. 394

Childress, Administratrix, v. Callender et al

No. 12,684

Supreme Court of Indiana

December 8, 1886

From the Knox Circuit Court.

The judgment is affirmed, with costs.

O. F Baker, E. B. Green and J. S. Pritchett, for appellant.

G. G Reily and W. C. Niblack, for appellees.

OPINION

Howk J.

In their brief of this cause, appellant's counsel say "This cause is here, purely, upon the instructions given and refused. It is conceded by appellant, as a matter of law, that if the instructions complained of are right, under any conceivable state of evidence, her error assigned is not available; and, as a matter of fact, that the evidence fully warranted each instruction, if it correctly states the law. She claims that the state of evidence, upon which these instructions were predicated, did as a matter of law demand that the instructions, asked by her and refused by the court, should have been given."

The point is made by appellees' counsel, however, and seems to be well made, that neither the instructions given, nor those asked for by appellant and refused by the court, were made parts of the record of this cause in such manner as that they can be considered here, or in any mode known to our law. They were not made a part of the record either by a bill of exceptions, or by an order of court. In section 535, R. S. 1881, which supersedes and takes the place of section 325 of the civil code of 1852, it is provided as follows: "A party excepting to the giving of instructions, or the refusal thereof, shall not be required to file a formal bill of exceptions; but it shall be sufficient to write on the margin, or at the close of each instruction, 'refused, and excepted to,' or 'given, and excepted to'; which memorandum shall be signed by the judge, and dated."

We have said that the section quoted superseded and took the place of section 325 of our first civil code. The latter section provided an exceptional mode for making the instructions of the trial court a part of the record, on an appeal to this court, without embodying such instructions, as our practice had previously required, in a "formal bill of exceptions." By that section, "the party or his attorney" could make the instructions a part of the record, of his own motion and without the action or sanction of the court or judge, by writing on the margin or at the close of each instruction "refused and excepted to," or "given and excepted to," and by signing such memorandum. So the law remained from the 6th day of May, 1853, without amendment or repeal, until the taking effect of section 535, above quoted, on the 19th day of September, 1881, or for more than twenty-eight years. During those years, the provisions of the old section were often the subject here of comment and construction; and it was uniformly held that, where it was sought to make instructions a part of the record in the mode prescribed in that section, and without a formal bill of exceptions, the requirements of the statute must be strictly complied with. Manhattan Life Ins. Co. v. Doll, 80 Ind. 113; O'Donald v. Constant, 82 Ind. 212; McCammack v. McCammack, 86 Ind. 387.

Section 535, above quoted, which has been in force since September 19th, 1881, is a literal re-enactment of section 325 of our first civil code, except in this, that "the party or his attorney" is no longer authorized to make the instructions, given or refused, a part of the record on an appeal to this court, by signing the statutory memorandum therein mentioned, but it is now provided in such section 535, that such "memorandum shall be signed by the judge and dated." The adoption and taking effect of such section 535 was, of course, a virtual repeal of so much of section 325 of the old civil code as was not re-enacted in the later section, and effected a radical and, we think, a wise change in our civil practice. Thereafter the...