Indianapolis Traction & Terminal Co. v. Gillaspy

• Decision Date: 22 May 1914
• Docket Number: No. 8303.,8303.
• Citation: 105 N.E. 242,56 Ind.App. 332
• Court: Indiana Appellate Court
• Parties: INDIANAPOLIS TRACTION & TERMINAL CO. v. GILLASPY.

56 Ind.App. 332

105 N.E. 242

INDIANAPOLIS TRACTION & TERMINAL CO.

v.GILLASPY.

No. 8303.

Appellate Court of Indiana, Division No. 1.

May 22, 1914.

Appeal from Circuit Court, Morgan County; John W. Williams, Judge.

Action by Franklin P. Gillaspy against the Indianapolis Traction & Terminal Company. Judgment for plaintiff, and defendant appeals. Affirmed.W. H. Latta, of Indianapolis, S. C. Kivett, of Martinsville, and M. E. Foley, of Crawfordsville, for appellant. Harry De Frates, of Palmyra, Ill., Bailey & Young, of Indianapolis, and E. W. Brickert, of Martinsville, for appellee.

HOTTEL, J.

Appellant appeals from a judgment obtained by appellee from personal injuries alleged to have resulted from his being struck by one of appellant's street cars on Russell avenue in the city of Indianapolis. The complaint was originally filed in the Marion superior court. The case was afterwards venued to the Morgan circuit court, where a trial by jury resulted in a verdict for appellee in the sum of $1,500.

[1][2] The only error assigned and relied on for reversal is the overruling of appellant's motion for a new trial. The first three grounds of this motion, while not expressly waived by appellant, will be so treated, because they are not mentioned or referred to in its points and authorities. Owen v. Harriott, 47 Ind. App. 359, 361, 94 N. E. 591, and cases cited. Grounds 4 to 18, inclusive, of such motion relate to the giving or refusal to give instructions. It is earnestly insisted by appellee that none of these grounds can be considered for the reason that the instructions are not all in the record. Apparently it was sought to make the instructions a part of the record under the provisions of section 561, Burns 1908. It appears that the respective instructions requested by the parties contained at the close no memorandum signed by the judge indicating “the numbers of those given and of those refused” as required by the provisions of such statute.

It is not contended that the instructions are brought into the record by reason of any other statute, and appellant in effect admits that the instructions requested by the respective parties are subject to the infirmity indicated, but insists that the objection on account thereof is purely technical, and that inasmuch as the order book entry shows that the court refused to give certain instructions, naming them, and gave certain instructions, naming them, that this sufficiently indicates that the court performed every act required by the statute and that in view of such record entry it must be presumed, in the absence of some affirmative showing to the contrary, that the court performed its judicial acts in such respect in accordance with the statute.

The order book entry cannot supply the omission of the memorandum of the identification of instructions given and refused, which, under the plain provisions of the statute, must appear at the close of the instructions requested by either party and which memorandum must be authenticated by the signature of the trial judge. Board, etc., v. Gibson, 158 Ind. 471, 489, 490, 63 N. E. 982.

This court has held that the provisions of the statute in question set forth clearly and explicitly the manner in which instructions given and refused become a part of the record in a cause and how they shall be identified and authenticated, and, that before the instructions in a cause can be made a part of the record and exceptions saved under the foregoing section, there must be a substantial compliance with all the provisions thereof. Holcomb v. Norman, 43 Ind. App. 506, 508, 87 N. E. 1057;Wiseman v. Gouldsberry, 45 Ind. App. 677, 678, 91 N. E. 616;Patterson v. State Bank, etc., 102 N. E. 880, 884;Baker v. Gowland, 37 Ind. App. 364, 76 N. E. 1027;Mace v. Clark, 42 Ind. App. 506, 85 N. E. 1049.

Appellant also insists that, if the court should determine that the instructions tendered by appellant and appellee are not in the record, yet the court's instructions given on its own motion are in the record, and hence any questions presented on such instructions must be considered. The decided cases of the Supreme Court and this court are against this contention;...