Thieme & Wagner Brewing Co. v. Kesler

• Decision Date: 15 March 1911
• Docket Number: No. 7,026.,7,026.
• Citation: 94 N.E. 338,47 Ind.App. 284
• Court: Indiana Appellate Court
• Parties: THIEME & WAGNER BREWING CO. v. KESLER.

47 Ind.App. 284

94 N.E. 338

THIEME & WAGNER BREWING CO.

v.KESLER.

No. 7,026.

Appellate Court of Indiana, Division No. 1.

March 15, 1911.

Appeal from Superior Court, Tippecanoe County; T. F. Palmer, Judge.

Action by the Thieme & Wagner Brewing Company against William Kesler. From a judgment for defendant, plaintiff appeals. Affirmed.Wilson & Quinn and John F. McHugh, for appellant. Davidson & Boulds, Charles E. Lake, and Charles E. Thompson, for appellee.

FELL, J.

Action to quiet title to real estate. Judgment for appellee, defendant below, from which this appeal is taken.

Appellant in its brief shows assignment of errors: “(1) Overruling of the motion for a new trial; (2) instructing the jury to return a verdict for appellee; and (3) in rendering judgment in favor of appellee.” Causes for a new trial, even when properly stated, cannot be assigned as separate error, but must be included in such motion, and for that reason the second and third assignments above shown present no question. Teeple v. State, 171 Ind. 274, 86 N. E. 49. Under the general heading of “statement of the record presenting errors and exceptions relied upon for the reversal of judgment,” appellant states that the exceptions relied upon are: (1) “Refusal by the court of instructions Nos. 1-21 and 3 offered by attorney for appellant;” and (2) the giving by the court of an instruction to the jury to return a verdict for defendant. But appellant's brief nowhere shows that the giving or the refusal of instructions was assigned as ground for a new trial, or in any way made a part of the motion for a new trial, and such motion does not appear in the briefs. Such failure to comply with clause 5 of rule 22 of this court (55 N. E. vi) precludes any consideration of questions arising upon the motion for a new trial. Tongret v. Carlin, 165 Ind. 489, 75 N. E. 887;Henderson v. Henderson, 165 Ind. 671, 75 N. E. 269; Indpls. St. R. Co. v. Marschke, 166 Ind. 497, 77 N. E. 945;Howard v. Adkins, 167 Ind. 186, 78 N. E. 665;B. C. Co. v. Feulner, 164 Ind. 375, 73 N. E. 816. Furthermore, it is apparent that appellant relies upon alleged error of the court in refusing certain instructions tendered and in giving an instruction to the jury. If the motion for a new trial had been shown as required by the rules, a further difficulty is encountered as the instructions are not properly in the record. In the Ohio & Miss. R. R. Co. v. Dunn, 138 Ind. 19, 36 N. E. 702, 37 N. E. 546, and in Indianapolis & Western R. R. Co. v. Ragan, 171 Ind. 571, 86 N. E. 966, our Supreme Court has set out three ways in which instructions may under our procedure become a part of the record, viz.: (1) By order of the court; (2) by special exceptions written upon the margin or following each instruction and signed by the judge; (3) by a general bill of exceptions. In the Dunn Case, supra, the...