Roose v. Roose

• Decision Date: 26 May 1896
• Docket Number: 17,954
• Citation: 44 N.E. 1,145 Ind. 162
• Parties: Roose v. Roose et al
• Court: Indiana Supreme Court

44 N.E. 1

145 Ind. 162

Roose v. Roose et al

No. 17,954

Supreme Court of Indiana

May 26, 1896

From the Elkhart Circuit Court.

Affirmed.

Dodge & Hubbell, for appellant.

Baker & Miller, for appellees.

OPINION

Jordan, J.

This was an action, commenced by the appellant, to contest the will of John M. Roose, deceased. The grounds of contest were that the will had been unduly executed and that the testator at the time of the execution thereof, was of unsound mind. A trial resulted in a verdict by the jury in favor of the appellees, and over appellant's motion for a new trial judgment was rendered upon the verdict. The evidence is not in the record, and the alleged errors of which the appellant complains, arise, in part, out of the action of the court in giving to the jury, at the request of appellees, instructions number one and six, and also in giving certain others on its own motion.

We cannot consider the objections urged by the learned counsel for the appellant, against the several instructions mentioned, for the reason, that no exception was reserved to the giving thereof by the court, in accordance with the requirements of section 544, Burns' R. S. 1894, and section 535, R. S. 1881, wherein it is provided that "a party excepting to the giving of instructions, on the refusal thereof, shall not be required to file a formal bill of exceptions," but it shall be sufficient to write on the margin, or at the close of each instruction "refused and excepted to," or "given and excepted to," which memorandum shall be signed by the judge and dated." On the margin, at instruction number one, given at the request of the appellees, we find the following: "Given and excepted. (Signed) H. D Wilson." At number six the following: "Given. (Signed) H. D. Wilson." It will be seen that neither of these memoranda is dated as the code requires, and the latter one does not disclose that an exception was taken to the action of the court in giving it to the jury.

In the case of Behymer v. State, 95 Ind. 140, in considering this section of the code, on page 142 of the opinion, it is said: "Under this section, the date is quite as material as the signature of the judge, first, because they are both required by the statute; and, second, because it is the date that shows when the exception was taken. It takes the place of the statement in a bill of exceptions, that the exception was taken at the time."

In Childress, Admx., v. Callender, 108 Ind. 394, 9 N.E. 292, the rule upon this question, as affirmed in Behymer v. State, supra, was approved. For the reason that the statutory memorandum to instruction number one in question is not dated, the exception is not properly reserved for the decision of this court. There is neither an exception nor date noted to the sixth instruction, and hence for this omission no error can be predicated upon it. The instructions given by the court are all open to the same objection. The only statement to show that exceptions were taken to the latter, is the following at the close thereof:

"To the giving of each of the above instructions severally plaintiff, at the time, duly execpted." This was not in compliance with the requirements of the section of the code to which we have referred, so as to be available, to the complaining party. The exception must be noted, either on the margin or at the close of each instruction, which written notation must be dated and signed by the trial judge. This the statute requires in plain imperative terms not open to construction.

Appellant next complains of the alleged misconduct of one of the attorneys for appellee, in his argument to the jury. In...