Holcomb v. Norman

• Decision Date: 08 April 1909
• Docket Number: No. 6,946.,6,946.
• Citation: 87 N.E. 1057,43 Ind.App. 506
• Parties: HOLCOMB v. NORMAN.
• Court: Indiana Appellate Court

43 Ind.App. 506

87 N.E. 1057

HOLCOMB

v.NORMAN.

No. 6,946.

Appellate Court of Indiana, Division No. 2.

April 8, 1909.

Appeal from Superior Court, Marion County; John L. McMaster, Judge.

Action by Charles E. Norman, by next friend, against J. Irving Holcomb. There was a judgment for plaintiff, and defendant appealed, and subsequently filed a petition for certiorari to bring into the record of the original appeal proceedings in the trial court. Refused.

James Bingham, for appellant. Emrich & Deupree, for appellee.

RABB, J.

The appellee brought an action in the court below to recover damages for a personal injury alleged to have been caused by the negligence of appellant. Issues were formed, a trial had, resulting in a verdict and judgment in favor of appellee, from which judgment an appeal was taken to this court and is now pending here.

Upon the trial of the cause, certain written instructions, each separately numbered, were prepared by both parties to the action, properly signed and at the proper time presented by the respective parties to the court, with the request that they be given to the jury, and that the court indicate, before the beginning of the argument, which of said instructions would be given. The court orally refused to give any of the instructions thus tendered by either party, but failed to indicate, before instructing the jury, by a memorandum in writing at the close of the instructions so requested, the number of those given and of those refused, signed by the judge, as required by the provisions of section 561, Burns' Ann. St. 1908. All of the instructions, both those given and those refused, were ordered filed by the court. Long after the close of the term at which the judgment was rendered, and after the appeal had been taken therefrom to this court, the appellant filed in the court below his petition for the alleged correction of the record of the court in said cause, by which he sought to make the record show a compliance with the statute above referred to in reference to the court's indicating by a written memorandum at the close of the instructions tendered, the number of said instructions given and those refused, and the signature of the judge to such memorandum. The appellee's motion to dismiss this petition was overruled. Evidence was heard by the court upon the petition, and a finding made in favor of the petitioner thereon, and a nunc pro tunc order amending the record as prayed for directed to be entered in said cause by the court. From this order the appellee appeals here, and the appeal is made auxiliary to the appeal in the original case, and upon this record the appellant has petitioned this court for a writ of certiorari to bring into the record of the original appeal these proceedings of the court below.

The provisions of the section of the Code under consideration are too plain and simple to...