Suloj v. Retlaw Mines Co.

• Decision Date: 11 December 1914
• Docket Number: No. 8432.,8432.
• Citation: 57 Ind.App. 302,107 N.E. 18
• Parties: SULOJ v. RETLAW MINES CO.
• Court: Indiana Appellate Court

57 Ind.App. 302

107 N.E. 18

SULOJ

v.RETLAW MINES CO.

No. 8432.

Appellate Court of Indiana, Division No. 2.

Dec. 11, 1914.

Appeal from Superior Court, Vigo County; John E. Cox, Judge.

Action by Peter Suloj against the Retlaw Mines Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Daniel Belasco, of Chicago, Ill., and Walker & Blankenbaker, of Terre Haute, for appellant. Davis & Bogart, of Terre Haute, and Mastin & Sherlock, of Chicago, Ill., for appellee.

LAIRY, J.

This is an action for damages growing out of a personal injury received by appellant while he was employed as a laborer in the mine of appellee. There was a verdict and judgment in appellee's favor.

The only error assigned on appeal is the action of the trial court in overruling appellant's motion for a new trial, and the only questions sought to be presented under this assignment relate to the giving of certain instructions and to the refusal to give certain instructions requested by appellant.

[1] Appellee asserts that the instructions are not properly a part of the record, and that for this reason no error is shown. No bill of exceptions containing the instructions was filed, but an attempt was made to bring the instructions into the record under the provisions of the statute on that subject. Burns 1914, § 561. Among other things, this statute provides that all instructions requested, whether given or refused, and all instructions given by the court of its own motion, shall be filed with the clerk of the court at the close of the instruction of the jury. A strict construction has been placed upon this provision of the statute, and it has been held that unless the record affirmatively shows that the instructions were filed in accordance therewith, such instructions are not a part of the record, and cannot be considered on appeal. Hotmire v. O'Brien, 44 Ind. App. 694, 90 N. E. 33;Elrod v. Purlee, 165 Ind. 239, 73 N. E. 589, 74 N. E. 1085;Indianapolis, etc., R. Co. v. Ragan, 171 Ind. 569, 86 N. E. 966.

The order book entry shows that the minutes made on the instructions by the trial court were filed and ordered made part of the record, but it does not show that the instructions themselves were filed, unless it must be held that the minutes indorsed thereon could not have been filed without filing the instructions. The statute provides that the court shall indicate, before instructing the jury, by a memorandum in writing at the close of the instructions so...