Bottorff v. Bottorff

45 Ind. App. 692 | Ind. Ct. App. | 1910

Roby, J.

Replevin for horse, buggy and harness by appellee, who had a verdict and judgment. The complaint states a cause of action. §1330 Bums 1908, §1266 R. S. 1881.

1. A demurrer was sustained to appellant’s second paragraph of answer, which attempted to set up former adjudication. The facts pleaded do^not show that appellee was a party or privy to the judgment relied upon, and the ruling was therefore correct.

2. The instructions are not in the record. An attempt was made to incorporate them under the provisions of the act of 1907 (Acts 1907, p. 652, §1, §561 Burns 1908).

3. This act rcc[uires that instructions given by the judge of his own motion shall be signed by him, which was not done. Wiseman v. Gouldsberry (1910), ante, 677; Vandalia Goal Co. v. Yemm (1910), — Ind. —. An attempt was made to remedy the omission by a nunc pro tune entry, but the finding shows that the judge through inadvertence did not sign the instructions. The function of a nunc pro tunc entry is to make a record of something that was done and not recorded. It cannot be used to make the record show action which was not in fact taken. Walters v. Uhl (1891), 3 Ind. App. 219.

4. 5. Complaint is made of the admission in evidence of two letters written by appellee to appellant. The contents of such letters are not relevant to the issue. It is claimed that they were admissible as bearing upon the credibility of appellee’s testimony. It is not competent to contradict a witness as to collateral matter. Firemans Fund Ins. Co. v. Dunn (1899), 22 Ind. App. 382.

The evidence sustains the verdict. The lawsuit is between two brothers, and involves property of small value. The appeal should not have been taken.

The judgment is affirmed.