Silver v. Parr
| Decision Date | 12 May 1888 |
| Docket Number | 13,292 |
| Citation | 17 N.E. 114,115 Ind. 113 |
| Parties | Silver v. Parr |
| Court | Indiana Supreme Court |
From the Hamilton Circuit Court.
The judgment is affirmed, with costs.
J Stafford and T. E. Boyd, for appellant.
T. J Kane and T. P. Davis, for appellee.
This was a suit by appellant, Silver, against appellee, Parr, as defendant in a complaint of three paragraphs. The object of the suit was to recover damages which plaintiff claimed he had sustained by reason of the careless and negligent treatment he had received from defendant, who had undertaken as a practising surgeon, to set the broken bones of plaintiff's leg, and to attend to and cure and heal the same for a fee and reward, etc.
Defendant answered by a general denial of plaintiff's complaint. The issues joined were tried by a jury, and a verdict was returned for the defendant, and, over plaintiff's motion for a new trial, the court adjudged that the defendant recover of the plaintiff his costs herein, taxed at, etc.
From this judgment plaintiff has appealed, and has here assigned as error the overruling of his motion for a new trial.
The evidence is not in the record. The only grounds upon which plaintiff's counsel rely for the reversal of the judgment below are (1) that the court erred in giving the jury certain instructions of its own motion, and (2) error of the court in refusing to give the jury certain other instructions at the plaintiff's request.
So far as the instructions asked for by plaintiff and refused by the court are concerned, it is settled by our decisions that where, as in this case, the evidence is not in the record, it will be presumed here, in support of the ruling of the court below, that such instructions were properly refused, because they were not applicable to the case made by the evidence. Freeze v. DePuy, 57 Ind. 188; Powers v. State, 87 Ind. 144; Louisville, etc., R. W. Co. v. Harrigan, 94 Ind. 245; Baltimore, etc., R. R. Co. v. Rowan, 104 Ind. 88, 3 N.E. 627.
The point is made by defendant's counsel, and seems to be well made, that none of the instructions, either those given by the court of its own motion or those requested by plaintiff and refused by the court, are properly in the record now before us, because, counsel say, none of such instructions were signed by the judge of the trial court.
In the sixth clause of section 533, R. S. 1881, it is provided, among other things, as follows,...
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