Cincinnati, H. & D. R. Co. v. Heim

• Decision Date: 25 September 1884
• Docket Number: 11,469
• Citation: Cincinnati, H. & D. R. Co. v. Heim, 97 Ind. 525 (Ind. 1884)
• Parties: The Cincinnati, Hamilton and Dayton Railroad Company v. Heim
• Court: Indiana Supreme Court

97 Ind. 525

The Cincinnati, Hamilton and Dayton Railroad Company v. Heim

No. 11,469

Supreme Court of Indiana

September 25, 1884

From the Fayette Circuit Court.

R. D Marshall and T. D. Evans, for appellant.

J. W Connaway, R. Conner and H. L. Frost, for appellee.

OPINION

Black C.

The appellee brought his action in the Union Circuit Court against the appellant, the complaint being in two paragraphs, both under the statute, one for killing and the other for injuring a mule owned by the plaintiff.

A motion to quash the summons and return and a demurrer to the complaint were overruled. An answer was filed, the second paragraph of which was struck out on the plaintiff's motion. Issues having been formed, the venue was changed to the Fayette Circuit Court, where the cause was tried by a jury. The verdict was in favor of the plaintiff, and with it the jury returned answers to interrogatories propounded by the defendant. A motion made by the defendant for judgment on the answers to interrogatories, notwithstanding the general verdict, was overruled. The court also overruled a motion made by the defendant for a new trial, and rendered judgment on the verdict.

The state of the record in relation to the motion to quash the summons and return is the same as that of the record in the case of Cincinnati, etc., R. R. Co. v. Leviston, ante, p. 488, at this term, except that that case originated before a justice, and except that in the case at bar the summons and return were not set out in the bill of exceptions, which contained the written motion, but which, for the summons and return, referred to a page of the transcript where the clerk had inserted them.

The statute, section 650, R. S. 1881, excepts from the papers which are to be deemed parts of the record the "summons for the defendant, where all the persons named in it have appeared to the action."

The failure to insert the summons and return in a bill of exceptions would prevent our consideration of the motion to quash, if there were no other reason; but if they had been so inserted in the bill filed, we could not regard the question as before us, for the reason stated in the opinion in the case above mentioned.

Under the assignment that the court erred in overruling the demurrer to the complaint, the same questions have been discussed that were decided under a similar assignment in the case to which we have referred, and upon the authority of that case we must hold that there was no error in overruling the demurrer.

The paragraph of answer which was struck out was not made part of the record by bill of exceptions or order of court. Therefore, no question concerning that ruling is before us. Stott v. Smith, 70 Ind. 298.

It does not, in any manner, appear that the interrogatories to which the jury returned answers were submitted by the court to the jury. Therefore, we can not consider any question which the appellant seeks to present under the...