Indianapolis & Western Railway Co. v. Ragan

• Decision Date: 14 January 1909
• Docket Number: 21,159
• Citation: 86 N.E. 966,171 Ind. 569
• Court: Indiana Supreme Court
• Parties: Indianapolis & Western Railway Company v. Ragan

86 N.E. 966

171 Ind. 569

Indianapolis & Western Railway Company v. Ragan

No. 21,159

Supreme Court of Indiana

January 14, 1909

From Hendricks Circuit Court; Thomas J. Cofer, Special Judge.

Condemnation proceeding by the Indianapolis & Western Railway Company against Lilly Ragan. From a judgment for defendant, plaintiff appeals.

Affirmed.

Otis E Gulley, W. H. Latta and L. H. Oberreich, for appellant.

Brill & Harvey and Samuel Ashby, for appellee.

Jordan C.J. Hadley, J., did not participate.

OPINION

Jordan, C. J.

This case arises out of the same condemnation proceedings instituted by appellant for its right of way as did the appeals of the Indianapolis, etc., R. Co. v. Hill (1909), 172 Ind. 402, 86 N.E. 414, and Indianapolis, etc., R. Co. v. Branson (1909), 172 Ind. 383, 86 N.E. 834. The only question here involved relates to the damages assessed by a jury in the lower court in favor of appellee, upon which, over appellant's motion for a new trial, judgment was rendered. The questions discussed and relied on by counsel for appellant for reversal relate to the giving and refusing to give certain instructions, and to the admission of certain evidence in favor of appellee.

At the very threshold appellee's counsel insist that the instructions given and refused are not in the record, for the reason that there is no affirmative showing that they were filed with the clerk of the lower court, as required by the statute. Counsel therefore insist that the rulings of the lower court on the giving and refusing of instructions cannot be considered or reviewed in this appeal. An examination of the transcript discloses the following in respect to the instructions: "And now before the beginning of the argument plaintiff requests the court to instruct the jury in writing only and to give the jury each of the following instructions, numbered one to fifteen inclusive." Here are set out in full the aforesaid instructions requested by plaintiff, which request is signed by its attorneys. The transcript then recites: "The instructions numbered one to fifteen inclusive, requested by plaintiff, are refused by the court, to which refusal to give each separate instruction plaintiff at the time excepts separately and severally. Thomas J. Cofer, special judge." After this is the following: "And now the argument of counsel is commenced and concluded, and now the court instructs the jury in writing and gives to the jury instructions numbered one to nine inclusive, prepared and given to the jury on the court's own motion." Here is set out each of the last aforesaid instructions. It is then stated that "to the giving by the court to the jury of each of the instructions numbered one to nine inclusive, on its own motion separately and severally, the plaintiff, at the time, excepts to the giving of each separate instruction. Thomas J. Cofer, special judge." It is further recited that said instructions are the only instructions given by the court to the jury. After this is the following: "And now all the instructions given and those requested by plaintiff and refused by the court, together with all the exceptions thereto, are by the court ordered filed and made a part of the record in this case, without a bill of exceptions."

By subdivision six of § 558 Burns 1908, § 533 R. S. 1881, it is provided that "all instructions given by the court must be signed by the judge, and filed, together with those asked for by the parties, as a part of the record." Section one of an act concerning proceedings in civil procedure, approved March 9, 1903 (Acts 1903, p. 338, § 544a Burns 1905), and in force at the time of the trial of this cause, also 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."

In Ohio, etc., R. Co. v. Dunn (1894), 138 Ind. 18, 36 N.E. 702, this court said: "Under the code and the recognized practice of this State, there are three methods of making instructions a part of the record: (1) By an order of court; (2) by special exceptions written upon the margin or following each instruction and signed by the judge; (3) by a general bill of exceptions. In the first and second methods the instructions receive identification from the filing required by the code."

In Hadley v. Atkinson (1882), 84 Ind. 64, this court said: "The record nowhere shows that these instructions were filed as a part of the record. Without this safeguard, instructions might get into the record without having been given by the court."

In Elrod v. Purlee (1905), 165 Ind. 239, 73 N.E. 589, a question similar to the one here involved was considered. In that case there was an order-book entry made upon the conclusion of the trial, which was as follows: "'All of the instructions given by the court herein are ordered filed.'" This court in that appeal, after considering the requirements of the statute, held that "the entry of the court should have shown that the instructions were filed," and, as this did not appear by the record, it was held that the instructions there involved had not been made a part of the record. In support of this holding the court, on page 242, cited numerous decisions of this court.

In Thompson v. Thompson (1901), 156 Ind. 276, 59 N.E. 845, the court said: "It is settled that in order to make the instructions a part of the record in a civil case, without a bill of exceptions, they must be filed in open court, * * * and the record must affirmatively show they were so filed."

Aside from the order of the court directing that the instructions given and refused be...