Southern Indiana Gas & Elec. Co. v. Beard

• Court: Indiana Appellate Court
• Writing for the Court: NICHOLS
• Citation: Southern Indiana Gas & Elec. Co. v. Beard, 81 Ind.App. 272, 143 N.E. 173 (Ind. App. 1924)
• Decision Date: 21 March 1924
• Docket Number: No. 11804.,11804.
• Parties: SOUTHERN INDIANA GAS & ELECTRIC CO. v. BEARD.

81 Ind.App. 272

143 N.E. 173

SOUTHERN INDIANA GAS & ELECTRIC CO.

v.BEARD.

No. 11804.

Appellate Court of Indiana, Division No. 2.

March 21, 1924.

Appeal from Circuit Court, Gibson County; R. C. Baltzell, Judge.

Action by Henry W. Beard against the Southern Indiana Gas & Electric Company. Judgment for plaintiff, and defendant appeals. Reversed, with instructions to grant new trial.

W. D. Robinson and W. E. Stilwell, both of Evansville, for appellant.

Baltzell & Baltzell, of Princeton, for appellee.

NICHOLS, J.

Action by appellee to recover from appellant damages for injuries resulting from a collision with appellee's automobile caused through the negligent operation of one of appellant's interurban cars at a highway crossing. There was a trial by jury, and a verdict and judgment in favor of appellee for $300.

[1] Overruling appellant's motion for a new trial is assigned as error. The motion includes as one of the reasons for a new trial the refusal of the court to indicate, upon written request of appellant made before the beginning of the argument to the jury, the instructions that the court would give to the jury. This action of the court is also assigned separately as error. Appellee contends that appellant's request in writing that the court give to the jury certain instructions and that it indicate before the beginning of the argument the instructions that would be given to the jury is not a part of the record, for the reason that such motion is not shown by an order book entry, citing as authority section 663, Burns' Indiana Statutes, Supp. 1921. But that statute, after providing that pleadings and motions in writing and orders or rulings of the court in respect thereto shall be entered by the clerk on the minutes or record of the court, and when so entered shall be a part of the record without any bill of exceptions, provides:

“That nothing herein shall be construed to prevent the bringing into or putting into the record by proper bill or bills of exceptions any matter, which under the common law, would not be a part of the record without a bill of exceptions.”

A full discussion of the origin, nature, purpose, and requisites of bill of exceptions at common law is found in Shinn's Pleading and Practice at Common Law, from sections 1021 to 1028, both inclusive. Section 1023 states that:

“It is a well-established rule that a party desiring to assign error on the decision of a court on a motion or objection must, in his bill of exceptions, not only preserve the motion or exception, but also the ruling of the court upon it and the exceptions thereto taken on the trial. The mere fact that the entries of the clerk show that an exception was taken to the ruling of the court does not make it a part of the record. It can only be made so by a bill of exceptions. The making of a bill of exceptions is a judicial act.”

Numerous authorities are cited to sustain the rule announced, among which we cite Chicago, etc., R. Co. v. Town of Calumet, 151 Ill. 512, 40 N. E. 625;Chicago, etc., R. Co. v. Goyette, 133 Ill. 21, 24 N. E. 549. That this was the common-law practice of this state prior to our first Code, see Wilson v. Coles, 2 Blackf. 402. Appellee's contention cannot prevail.

[2] The record shows,...