City of Indianapolis v. Barthel
| Decision Date | 08 February 1924 |
| Docket Number | No. 23801.,23801. |
| Citation | 142 N.E. 409,194 Ind. 273 |
| Parties | CITY OF INDIANAPOLIS v. BARTHEL. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Bartholomew County; John W. Donaker, Judge.
On petition for rehearing. Petition overruled.
For former opinion, see 141 N. E. 339.
It is true that a record entry may be made to show that certain instructions were tendered, that certain of them were given and others refused, that the court gave others of its own motion, and that appellant reserved exceptions to the several rulings of the court, if the instructions so given and excepted to and those refused and excepted to are sufficiently identified by the signatures of the judge and counsel and by their position in the record. Section 558, subds. 4, 6, and section 561, Burns' 1914; Duckwall v. Davis, 142 N. E. 113 (No. 23884, Jan. 18, 1924).
But the statutory requirement that requested instructions must be “signed by the party or his attorney asking the same,” and that “all instructions given by the court must be signed by the judge,” and other similar provisions are not wholly nugatory, but at the least have the effect of requiring identification of the instructions when copied into the transcript for an appeal.
The instructions requested in this case were not copied into the transcript in connection with the signed requests, nor in immediate connection with the record recital that instructions bearing certain numbers were given, and those bearing certain other numbers were refused, but they and the three unsigned instructions attributed to the court were identified only by parenthetical notes prefixed to them in making up the transcript. And the number of instructions which the request signed by counsel for plaintiff, as set out on page 26 of the transcript,purports to tender does not even correspond with the number set out on pages 30 to 33, under the headnote “instructions tendered by plaintiff.”
The instructions have not been made part of the record in any manner provided by the statute.
The petition for a rehearing is overruled.
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