Hart v. Board of Com'rs of Johnson County
| Decision Date | 01 November 1895 |
| Docket Number | 17,601 |
| Citation | 41 N.E. 825,143 Ind. 363 |
| Parties | De Hart v. The Board of Commissioners of Johnson County |
| Court | Indiana Supreme Court |
Petition for Rehearing Overruled January 21, 1896.
From the Bartholomew Circuit Court.
The judgment is affirmed.
M. L Herbert and Hacker & Remy, for appellant.
T. W Woollen, for appellee.
The appellant sued the appellee in the Johnson Circuit Court to recover damages for personal injuries alleged to have been received by her, the proximate cause of which she alleged was the negligence of the appellee in leaving unguarded by railing an approach to a county bridge in said Johnson county.
The venue of the cause was changed to the Bartholomew Circuit Court, where a trial of the issues joined resulted in a verdict and judgment for the defendant over plaintiff's motion for a new trial.
The only question presented by the assignment of error arises out of the action of the trial court in overruling the plaintiff's motion for a new trial. The errors complained of in the motion for a new trial are the giving and refusal of the court to give certain instructions, the admission of certain evidence, that the verdict was contrary to law and the evidence.
To determine most of the questions thus raised, it is essential that we have the evidence before us.
There is attached to the transcript what purports to be a bill of exceptions properly signed by the trial judge incorporating into said bill what purports to be the original longhand manuscript of the evidence. But there are several reasons why it is not, and cannot be considered a part of the record: 1. There is no statement anywhere in the transcript that the bill of exceptions was ever filed in the clerk's office. This is required to be done before it can become a part of the record. R. S. 1894, section 641; R. S. 1881, section 629; Shulse v. McWilliams, 104 Ind. 512, 3 N.E. 243; Loy v. Loy, 90 Ind. 404; Stewart v. State, 113 Ind. 505, 16 N.E. 186; Downey v. Head, 138 Ind. 503, 38 N.E. 169; Board, etc., v. Huffman, Admr., 134 Ind. 1, 31 N.E. 570; Guirl v. Gillett, 124 Ind. 501, 24 N.E. 1036; Shewalter v. Bergman, 132 Ind. 556, 27 N.E. 159; Pittsburg, etc., R. W. Co. v. O'Brien, 142 Ind. 218, 41 N.E. 528.
2. There is nothing to show that the longhand manuscript was ever filed in the clerk's office before it was incorporated into the bill of exceptions.
This the statute requires to be done. R. S. 1894, section 1476; R. S. 1881, section 1410.
This statutory requirement has an important significance, because the same section authorizes and requires the clerk when it has been so filed "to certify the said original manuscript of evidence when the same shall have been incorporated in a bill of exceptions, to the supreme court or other court of appeal, instead of a transcript thereof." It is a general principle of law that public records must be identified and authenticated by the keeper and legal custodian thereof. Painter v. Hall, 75 Ind. 208; 20 Am. and Eng. Ency. of Law 514, 515, and authorities there cited. Unless the longhand manuscript has been filed in the cause with the clerk before it is incorporated into the bill of exceptions, he cannot certify the original thereof to this court, and identify and authenticate it as the statute cited requires, because he has not been made the legal keeper or custodian of the original longhand manuscript as such, but has been made the custodian of the bill of exceptions incorporating it. And the original of that document, the statute as a general thing does not authorize him to certify to this court.
3. And what purports to be the bill of exceptions in the case before us is not incorporated into the transcript, but is attached to the transcript after the clerk's certificate, and after the assignment of errors, nor is it certified to be, nor identical as, the bill of exceptions by the clerk of the trial court. Any one of these reasons is sufficient to prevent it being considered as a part of the record.
The evidence not being in the record, we must presume that the instructions asked were refused, because they were not applicable to the case made by the evidence. Jenkins v. Wilson, 140 Ind. 544, 40 N.E. 39, and authorities there cited; Holland v. State, 131 Ind. 568, 31 N.E. 359; State v. Beackmo, 8 Blackf. 246; Ruffing v. Tilton, 12 Ind. 259; Jeffersonville, etc., R. R. Co. v. Cox, 37 Ind. 325; Blizzard v. Bross, 56 Ind. 74; Stout v. Turner, 102 Ind. 418, 26 N.E. 85; Baltimore, etc., R. R. Co. v. Rowan, 104 Ind. 88, 3 N.E. 627.
The court gave twenty-three instructions, to the giving of twenty-two of which exception was taken. The first one told the jury that "it devolves on the plaintiff to prove all the material facts in the complaint by a preponderance of the evidence; and if she fails to do so you should find for the defendant."
In support of the objection to this instruction, we are cited to Long v. Doxey, 50 Ind. 385. The instruction there condemned told the jury in effect, that they must find for the defendant if the plaintiff had failed to establish all the facts alleged in the complaint. That is a very different thing from requiring the plaintiff to prove all the material facts alleged in the complaint.
In Salem Stone and Lime Co. v. Griffin, 139 Ind. 141, at page 147, 38 N.E. 411, speaking of a similar objection to an instruction this court said: "Other charges stating the theory of the action, the burden of proof, and the requirement that less than all the facts pleaded by the plaintiff would not support a recovery were given, and, when considered in connection with that to which exception...
To continue reading
Request your trial