64 Ind. App. 356 | Ind. Ct. App. | 1917
Appellee filed in the Marshall Circuit .Court a complaint in one paragraph in which he alleges
Exhibit A, made a part of said complaint, is as follows:
“Bremen, Indiana, April 26th, 1913.
“Moses Brown to David Guyer, Dr.
Oct. 26, 1912. To 728 bushels of onions at 32c................$232.96
April 23,1913. To screening and delivering at Bremen onions bot. of Shiveley.............. 10.00
Total Due........$242.96”
Appellant filed a written motion to separate the complaint into paragraphs for reasons stated therein as follows: “The defendant has a distinct and separate defense to each of the items comprising the account set out in the exhibit, * * * the transactions * * * have no connection, and the defendant is deprived * * * of raising the questions constituting his defense to them separately ***.”'
The appellant filed an answer in general denial and a counterclaim. No evidence was offered upon the counterclaim, and hence the issues tendered by it need not be indicated.
By such ruling appellant was in no event deprived of any substantial right. He could have filed an affirmative partial answer as to that part of the complaint predicated on the merchandise alleged to have been sold and delivered to him, in which answer he could have set up the facts upon which he relied to bring that part of the indebtedness sued on within the statute of frauds. He could also, and in fact did in this case, tender an instruction which gave him the full benefit of such statute.
The record then shows that argument of counsel was heard, and after hearing instructions, the jury retired, etc., and that “the instructions given on motion of the court, and the instructions tendered by the defendant given and refused, and the instructions tendered by the plaintiff given and refused are filed and made part of the record in this cause and are in these words:” Then follows instructions, each of which is preceded with its number, viz.: “1,” “2,” and “3,” respectively, each number being followed with the words “given on motion of the court.” Immediately following these three instructions appears what purports to be instructions asked by the appellee, signed by his attorneys, and designated as “first” and “second.” There is nothing to indicate whether these instructions were given or refused, except the words “Given” and “Refused” in red ink on the margin of the transcript filed in this court, which indicates that the first was given and the second refused. These are followed by “No. 4 given on motion of- court,” and “No. 5 given on motion of court.” Then follows defendant’s request for in
The record wholly fails to identify the instructions given and refused in the manner required by §561, Burns 1914, supra. The marginal notes required by the rules of this court to be placed on the transcript cannot be made to supply the identification of the instructions given and refused, which the said section of the statute requires to be shown by the record made in the trial court. It is apparent that the record indicated fails to show a compliance with either of the modes provided by statute for the saving of error in the giving or refusal to give instructions. We might add, however, that our examination of the instructions convinces us that those indicated in the manner, supra, as given were applicable to the issues and the evidence, and that they were as favorable to appellant as the law governing the case would warrant.
Finding no reversible error in the record, the judgment below is affirmed.
Note. — Reported in 115 N. E. 947.