171 Ind. 554 | Ind. | 1909
At the proper time appellants requested the court to instruct the jury, in effect, that if they found that the road proposed to be vacated was not of public utility, they should find for the petitioners upon that issue., The court refused to give said instruction, and also another instruction requested by appellants. It is shown by a bill of exceptions in the record that appellants at the time excepted to the refusal to give each of said instructions. They challenged the refusal to give said instructions severally, and not jointly, as claimed by appellees. All the instructions given by the court to the jury, and all the instructions refused by the court, were made a part of the record under section one of the act of 1903 (Acts 1903, p. 338, §544a Burns 1905). '
Appellees insist that no question is presented as to the instructions refused, because the evidence is not in the record.
Other grounds for reversal are urged by appellants, but there is a contention as to whether the same are presented by the record, and as they may not arise on another trial,. they are not considered.
Judgment reversed, with instructions to sustain appellants’ motion for a new trial, and for further proceedings not inconsistent with this opinion.