Indiana Quarries Company v. Lavender

• Citation: 116 N.E. 2,64 Ind.App. 427
• Decision Date: 11 May 1917
• Docket Number: 9,168
• Parties: INDIANA QUARRIES COMPANY v. LAVENDER
• Court: Indiana Appellate Court

116 N.E. 2

64 Ind.App. 427

INDIANA QUARRIES COMPANY v. LAVENDER

No. 9,168

Court of Appeals of Indiana

May 11, 1917

64 Ind.App. 415. At 427.

Original Opinion of December 3, 1916, Reported at: 64 Ind.App. 415.

Petition for rehearing overruled.

OPINION

ON PETITION FOR REHEARING.

FELT J.

Appellant insists that the trial court erred in overruling its motion for a new trial, and that this court erred in holding that reversible error is not shown in the giving of the instructions, and bases this contention on instruction No. 7 given by the court at the request of appellee.

Appellee in his original briefs contends that the instructions are not properly in the record because it does not appear from the transcript that any of the instructions were filed with the clerk or that they were so filed at the close of the instruction given the jury; that it does not appear that either the instructions given or those tendered and refused by the court were filed as required by § 561 Burns 1914 Acts 1907 p. 652, which appellant has undertaken to follow.

The only entry on the subject shown by the transcript is as follows: "Evidence is again resumed and concluded. Arguments are by the different counsel heard. Court instructs said jury by reading certain written instructions which instructions are filed by the court and made a part of the record in this case, and are in the words as follows, to wit: (Copies of certain instructions are here set out)." Section 561 Burns 1914, supra, among other things, provides that: "All instructions requested, whether given or refused, and all instructions given by the court of its own motion, shall be filed with the clerk of the court at the close of the instruction of the jury." There must be substantial compliance with all the provisions of the statute to authorize the consideration of instructions claimed to be in the record in pursuance of its provisions. The record entry, when liberally construed, shows that the instructions given were filed by the court, and made a part of the record, but it does not show that the instructions tendered and refused were so filed and made a part of the record. Furthermore, the record does not show when the instructions were filed, and the statute requires them to be "filed with the clerk of the court at the close of the instruction of the jury." Compliance with the statute as to the time of such filing is an essential part of the...