Neff v. Masters

Decision Date23 November 1909
Docket NumberNo. 21,496.,21,496.
Citation89 N.E. 846,173 Ind. 196
PartiesNEFF et al. v. MASTERS et al.
CourtIndiana Supreme Court


Appeal from Circuit Court, Fulton County; Harry Beructha, Judge.

Proceedings by Jonathan Masters and others against Thomas Neff and others to establish a public highway. From a judgment establishing the highway and awarding defendants damages, they appeal. Affirmed.

Arthur Metzler, for appellants. Holman, Stephenson & Bryant, for appellees.


This proceeding was brought by appellees in May, 1907, before the board of commissioners of the county of Fulton to locate and establish a public highway. Such proceedings were had before said board that a judgment was rendered by said board establishing said highway, and for damages in favor of certain remonstrators. Appellants appealed from said judgment to the court below, where the case was tried by a jury, and a verdict returned in favor of appellees, and in favor of appellants for damages. Appellants' motion for a new trial was overruled, and judgment was rendered upon said verdict, from which appellants appeal. The only error assigned calls in question the action of the court in overruling appellants' motion for a new trial.

Appellants insist that the court erred in giving (1) each of certain instructions on its own motion; and (2) each of certain instructions requested by appellees; and (3) in refusing to give instruction No. 1 requested by appellants. Appellees contend that said instructions given and those refused “are not in the record in such a way as to predicate error upon any of them, and that no exceptions were taken to any of the instructions given or refused at the term at which the cause was tried.” The case was tried at the March term, 1908, of the court below, and the verdict returned by the jury on April 14th, the twentieth judicial day of said term. The motion for a new trial was filed April 25, 1908; the same being the thirtieth judicial day which was the last day of said term. The exceptions to the instructions given and to the action of the court in refusing to give those requested by appellants were taken on April 27, 1907, as shown by the record when filed in this court. After the record was filed in this court, appellants filed an application in the court below for a nunc pro tunc entry to show that said exceptions were taken on April 25, 1908, instead of April 27, 1907. On a hearing of said application the court ordered “that the date be, and the same is hereby, corrected nunc pro tunc to read 1908 instead of 1907.” As corrected, the record shows that the exceptions to the giving and refusing to give instructions were taken on April 27, 1908, which was after the expiration of the term at which said cause was tried.

Prior to the taking effect of the act of 1903 (Acts 1903, p. 338, c. 193), exceptions to the giving or the refusing to give instructions could not be taken after the return of the verdict by the jury. Hawley v. State, 69 Ind. 98, 101, 102;Vaughn v. Ferrall, 57 Ind. 182, 185, and cases cited; Ewbank's Manual, §§ 24, 28. Section 1 of said act of 1903 (Acts 1903, p. 338, c. 193) and said section as amended in 1907 (Acts 1907, p. 652, c. 283),...

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