Thompson v. Thompson

• Decision Date: 06 March 1901
• Docket Number: 18,908
• Citation: 59 N.E. 845,156 Ind. 276
• Parties: Thompson v. Thompson
• Court: Indiana Supreme Court

59 N.E. 845

156 Ind. 276

Thompson v. Thompson

No. 18,908

Supreme Court of Indiana

March 6, 1901

From the Knox Circuit Court.

Affirmed.

Orlando H. Cobb, for appellant.

W. A Cullop, C. B. Kessinger and A. M. McClure, for appellee.

OPINION

Monks, J.

Appellee brought this action to contest the will of Sarah Thompson deceased, on the ground that she was of unsound mind. The trial resulted in a judgment setting aside the will. The only error assigned calls in question the action of the court in overruling appellant's motion for a new trial. The giving of certain instructions was assigned as a cause for a new trial.

The instructions given are not made a part of the record by a bill of exceptions, and appellee insists that as the record does not show that they were filed, they are not in the record, and cannot be considered. It is settled that in order to make the instructions a part of the record in a civil case, without a bill of exceptions, they must be filed in open court (cl. 6 of § 542 Burns 1894, § 533 R. S 1881 and Horner 1897), and the record must affirmatively show they were so filed. Blount v. Rick, 107 Ind. 238, 240, 5 N.E. 898; Landwerlen v. Wheeler, 106 Ind. 523, 528, 529, 5 N.E. 888; Louisville, etc., R. Co. v. Wright, 115 Ind. 378, 394, 7 Am. St. 432, 16 N.E. 145; Krom v. Vermillion, 143 Ind. 75, 77, 41 N.E. 539; Killion v. Hulen, 8 Ind.App. 494, 36 N.E. 49; Ewbank's Manual, § 28. The filing in open court of any paper in a case as an answer, demurrer, or reply, which by such filing becomes a part of the record proper, must be shown by an order-book entry, made as a part of the proceedings in the cause. Wilson v. State, post, 631; Harris v. State, 155 Ind. 15, 56 N.E. 916; Home, etc., Co. v. Globe, etc., Co., 146 Ind. 673, 681, 45 N.E. 1108.

The filing of instructions under § 542 (533), supra, must be in open court, like the filing of an answer, demurrer, or reply, as a part of the proceedings in the cause, and, like the filing of an answer, demurrer, or reply, can only be shown by an order-book entry stating the same were filed. On appeal, such instructions must be copied into the transcript as a part of the entry showing such filing. In this case there is no order-book entry in the record showing the filing of any instructions, but there is a recital in the clerk's certificate to the transcript that said instructions were filed on October 26, 1898.

A thing done in open court, which must be proved by an order-book entry as a part of the proceedings in a cause, cannot be shown by a recital in the certificate of the clerk.

The refusal of the court to give certain instructions requested by appellant is assigned as a cause for a new trial. Said...