Roach v. Cumberland Bank
| Citation | 111 N.E. 320,60 Ind.App. 547 |
| Decision Date | 26 January 1916 |
| Docket Number | No. 8928.,8928. |
| Parties | ROACH v. CUMBERLAND BANK. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Marion County; Charles J. Orbison, Judge.
Action by the Cumberland Bank against William J. Roach and others. From a judgment for plaintiff, defendant Roach appeals. Affirmed.G. Edgar Turner, Charles W. Miller, and Henry M. Dowling, all of Indianapolis, for appellant. Joseph R. Williams and Chalmer Schlosser, both of Indianapolis, and Perry E. Bear, of Madison, for appellee.
Appellee brought this action against appellant, and Roach-Brown Manufacturing Company and Albert J. Brown, upon nine separate notes alleged to have been given to appellee by the Roach-Brown Manufacturing Company and indorsed by appellant and Albert J. Brown. The case was tried on a complaint of nine paragraphs. Issues were joined by appellant on the first paragraph by non est factum, and on the second to ninth inclusive, by answer in three paragraphs, one of general denial, one of payment, and a plea of non est factum. A trial by jury resulted in a verdict for appellee in the sum of $907.32. Appellant's motion for a new trial was overruled, judgment was rendered on the verdict, and this appeal prayed and granted.
The only error assigned is the ruling on appellant's motion for a new trial. Such motion is based on alleged errors, as follows: The giving of instruction 5; the admission in evidence of appellee's exhibits Nos. 11 and 12; error in overruling appellant's objection to certain evidence, the details of which are set out; that the verdict is not sustained by sufficient evidence, and is contrary to law.
[1][2][3] As to the first alleged ground for a new trial, appellee insists that no exception was properly saved to the instruction, and therefore that no reversible error is shown, if the instruction be erroneous. The record shows that the jury was instructed on December 8, 1913, and the memorandum at the close of instruction 5 shows an exception noted by the trial judge on December 30, 1913.
There is no attempt to bring the instructions into the record by a bill of exceptions, and it is not clear what section of the statute appellant relies upon to make the instructions a part of the record. If reliance is placed on sections 559, 560, Burns 1914, to be effective, the exception noted must be dated, and the date must precede the return of the verdict. Ewbanks Manual Proc. §§ 28, 28a; Vaughn v. Ferrall, 57 Ind. 182, 185;Malott v. Hawkins, 159 Ind. 127, 128, 63 N. E. 308;Behymer v. State, 95 Ind. 140, 142;Retsek v. Harbart, 176 Ind. 441, 444, 445, 96 N. E. 386;Indianapolis, etc., R. Co. v. Ragan, 171 Ind. 569, 571, 86 N. E. 966.
If appellant was proceeding under section 561, Burns 1914 (Acts 1903, p. 338), he might have taken his exception orally or in writing. If taken orally, the exception must be noted on the minutes of the court, and such entry must appear in the transcript on appeal. If taken by written memorandum, it must be dated and signed by the party or his counsel. Neither of these methods of taking exception has been followed in this case.
[4] It is contended that the record shows an order to file the instruction, and that by reason thereof the instructions are a part of the record under section 561, supra.
It has been held that an order to file is not sufficient, and that to become a part of the record under said section it must appear from the record that the instructions were in fact filed. Suloj v. Retlaw Mines Co., 57 Ind. App. 302, 107 N. E. 18;Retsek v. Harbart, 176 Ind. 441, 445, 96 N. E. 386; Indianapolis, etc., Co. v. Ragan, supra; Newson v. Chicago, etc., Co., 52 Ind. App. 577, 579, 101 N. E. 26;Thieme & Wagner, etc., Co. v. Kessler, 47 Ind. App. 284, 94 N. E. 338.
[5] It follows that the instructions are not properly in the record, and that no question relating thereto is duly presented.
The second ground of appellant's motion for a new trial is expressly waived.
[6] The third ground is predicated on the alleged error in overruling the objection of appellant to the introduction in evidence of Appellee's Exhibit No. 11, which is a note dated September 13, 1909, payable to Thomas E. Day for lumber. Appellant objected on the ground that it was an attempt to impeach appellant on a collateral matter; that the instrument offered has nothing whatever to do with the issues in the case at bar and was executed long prior to any period of time embraced in any matter set out in the complaint; that a witness cannot be impeached upon a collateral matter.
Appellant admitted that he had signed the note, and it was offered in evidence as a part of his cross-examination. Appellant had offered in evidence a number of instruments signed by him for comparison of his signatures in support of his plea of non est factum. The signature being admitted, neither of the objections stated are tenable. Section 528a, Burns 1914...
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