McCormick Harvesting Mach. Co. v. Smith

• Decision Date: 21 February 1899
• Parties: McCORMICK HARVESTING MACH. CO. v. SMITH.
• Court: Indiana Appellate Court

21 Ind.App. 617

52 N.E. 1000

McCORMICK HARVESTING MACH. CO.

v.SMITH.

Appellate Court of Indiana.

Feb. 21, 1899.

Appeal from circuit court, Newton county; S. P. Thompson, Judge.

Action by the McCormick Harvesting Machine Company against Philip S. Smith. There was a judgment for defendant, and plaintiff appeals. Affirmed.Cumming & Darroch, for appellant. Saunderson & Cunningham, for appellee.

HENLEY, J.

This is an action commenced by the appellant against the appellee to recover damage for an alleged breach of contract of purchase by appellee of appellant of one McCormick Harvester Binder. The contract of purchase was in writing. The complaint is in two paragraphs. Appellee filed five paragraphs of answer, the first being a general denial. Appellant demurred to the second, third, fourth, and fifth paragraphs of answer, which demurrer the court overruled, and appellant replied in general denial. The cause, being at issue, was submitted to a jury for trial, which resulted in a verdict in favor of appellee. Appellant moved for a new trial, which was refused. The appellant has assigned errors to this court as follows: (1) That the court erred in overruling appellant's demurrer to the second, third, fourth, and fifth paragraphs of answer; (2) the court erred in giving to the jury, on its own motion, instructions numbered 4, 5, 6, and 7, over the objections of appellant; (3) the court erred in overruling appellant's motion for a new trial.

The first specification of the assignment of errors is not discussed by appellant's counsel, and any question raised thereon, under the often-stated rule of this court, is waived. No question is presented by the second specification of the assignment of errors. Questions involving the giving and refusal to give instructions to a jury are raised by the motion for a new trial, and whatever question appellant attempts to raise by its second specification of the assignment of errors is raised by the third specification.

The motion for a new trial assigns as one of its reasons that “the court erred in giving instructions numbered 3, 4, 5, 6, and 7, on its own motion, and excepted to at the time by the plaintiff.” When the objection or exception taken by the appellant in the lower court, or its assignment of errors in this court, is joint as to more than one ruling or act of the lower court, it will fail, unless valid as to all of such acts or rulings. Saunders v. Montgomery, 143 Ind. 185, 41 N. E. 453;Pennsylvania Co. v. Sears, 136 Ind. 460, 34 N. E. 15, and 36 N. E. 353;Black v. Thompson, 136 Ind. 611, 36 N. E. 643;Noe v. Roll, 134 Ind. 115, 33 N. E. 905;Lawrence v. Van Buskirk, 140 Ind. 481, 40 N. E. 54;Cargar v. Fee, 140 Ind. 572, 39 N. E. 93;Eddingfield v. State. 12 Ind. App. 312, 39 N. E. 1057;McCullough v. Martin, 12 Ind. App. 165, 39 N. E. 905;Bank v. Cooper, 19 Ind. App. 13, 48 N. E. 236;Oil Co. v. Whiteman, 19 Ind. App. 149, 49 N. E. 171; Elliott, App. Proc. § 793.

There can be no doubt but that the court stated the law correctly in its instruction to the jury numbered 7, of which appellant has complained. The instruction is not only correct as an abstract statement of law, but the error, if any, would not be available for another reason: The evidence not being in the record, instructions given by the court cannot be regarded as erroneous, if they can be considered correct on any state of facts admissible under the issues. Hilker v. Kelly, 130 Ind. 356, 30 N. E. 304;Joseph v. Mather, 110 Ind 114, 10 N. E. 78.

From an examination of the record in this case, we find that the bill of exceptions is not properly a part of the record. A bill of exceptions, although signed by the trial judge, as it is in this instance, cannot be considered on appeal, unless it affirmatively appears from the record that it was filed after being so signed. An order-book entry showing that it was filed after being so signed, or the certificate of the clerk of the trial court showing such filing, is necessary. Mills v. Bryam, 16 Ind. App. 698, 45 N. E. 525;De Hart v. Board, 143 Ind. 363, 41 N. E. 825;Stone Co. v. Wray, 143 Ind. 574, 42 N. E. 927;Shewalter v. Bergman, 132 Ind. 556, 27 N. E. 159;Board v. Huffman, 134 Ind. 1, 31 N. E. 570;Stone Co. v. Hobbs, 144 Ind. 146, 42 N. E. 1022;Lowry v. Downey, 150 Ind. 364, 50 N. E. 79;Gifford v. Hess, 15 Ind. App. 450, 43 N. E. 906;Kelso v. Kelso, 16 Ind. App. 615, 44 N. E. 1013, and 45 N. E. 1065; Acts 1897, p. 244.

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