19 Ind. App. 13 | Ind. Ct. App. | 1897
— Appellant was the plaintiff below, and began the action upon a promissory note. Appellees
The facts are these: McLaughlin Bros., residents of the state of Ohio, were the owners of a stallion which they desired to sell. They effected a sale of the horse to a company of farmers in Putnam county for the sum of $3,000.00. McLaughlin Bros, accepted three $1,000.00 notes in payment for the horse. These notes were signed by the purchasers, and were payable in a bank in this State, and were negotiable by the law merchant. McLaughlin Bros, transferred these notes by written indorsement, before maturity, to the appellant. The first paragraph of appellant’s answer was the general denial, the second, that the notes in suit were given without any consideration, and that appellant took them with knowledge of that fact. The third, that appellees signed the notes in suit under an agreement with the payees that the notes should be signed by certain other parties; also that said other parties refused to sign the notes, and the appellant took the notes with full knowledge of that fact.' The fourth paragraph was a verified answer, alleging that the notes were never delivered by the makers to the payees. The fifth paragraph of answer averred that an agent of the said McLaughlin Bros, organized a stock company for the purchase of a certain horse, which they were offering for sale for $3,000.00, and that the appellees and three other persons subscribed for stock in said coriipany, and that appellees were induced to subscribe for said stock by reason of certain false and fraudulent representations made by the agent of the payees of said
The assignment of error contains three specifications,' which we will discuss in their order: First, that the lower court erred in overruling the demurrer of the appellant to the amended answer of the appellees; second, that the lower court erred in overruling the appellant’s motion to strike out and suppress parts of the depositions of witnesses; third, that the lower court erred in overruling the appellant’s motion for a new trial.
The first specification of the assignment of errors is too indefinite to present any question to this court. A demurrer was overruled by the lower court to six several paragraphs of answer. The sufficiency of but one of these answers is attacked by appellant’s counsel in the argument. The particular paragraph of answer should have been designated in the assignment of errors if appellant desired to attack the ruling of the lower court in this court. Elliott’s Appellate Procedure, section 337; Bolin v. Simmons, 81
In order that the original longhand transcript of the official shorthand reporter’s notes be made a part of the bill of exceptions, the record must affirmatively show that said transcript was first filed in the clerk’s office, afterward incorporated in the bill of exceptions, then presented to the trial judge, and by him authenticated by his signature. It then becomes a part of the bill of exceptions. The bill of exceptions must then be filed with the clerk, and the matters properly contained therein become a part of the record. Manley v. Felty, 146 Ind. 194; Pittsburg, etc., R. W. Co. v. Cope, 16 Ind. App. 579. The record in the cause shows that on the 22nd day of August, 1896, a bill of exceptions designated as bill of exceptions No. 2, was filed in the office of the clerk of the circuit court, which bill of exceptions contained the longhand manuscript of the evidence as* taken and prepared by the official reporter in this cause. The record further shows that on the 21st day of August said bill of exceptions No. 2, containing the evidence, was presented to the trial judge, and by him signed. It is further shown in the certificate of the clerk, attached to the manuscript, that the official reporter who took the evidence in this cause, filed in the clerk’s office her longhand manuscript thereof, on the 22d day of August, 1896. If we accept the certificate of the clerk to the transcript as the proper mode of showing the time of the filing of the evidence in his office, it shows the filing at the same time, or upon the same day, the bill of exceptions was filed. This is not sufficient. Manley v. Felty, supra. And in this cause it affirmatively appears that the evidence was incorporated in the bill
The evidence not being in the record, the court will presume that the instructions asked and refused, were refused because they were not applicable to the case made by the evidence. Jenkins v. Wilson, 140 Ind. 544; Holland v. State, 131 Ind. 568. The instructions given cannot be regarded as erroneous, if they can be considered correct upon any state of facts admissible under the issues. Rapp v. Kester, 125 Ind. 79; Hilker v. Kelley, 130 Ind. 356.
The tenth reason for a new trial related to the alleged misconduct of the jury trying the cause, and was as follows: “That J.B. Christy and John T. Jones, two of the jurors, were guilty of misconduct in this, to wit: That after the adjournment of the court, on the first day of the trial of this cause, the said two jurors went to the livery stable of George B. Cooper, one of the defendants in this cause, and asked the said Cooper to be allowed to see the horse in payment for which the note in suit had been given; that said Cooper directed that the horse be led out upon.the floor of said stable, and caused him to be exhibited to the said two jurors; and that while said horse was being so exhibited, the said horse because of some accident or mismanagement, fell upon the floor of said stable, and by reason of said fall was severely injured, and disabled, and greatly damaged. The affidavit of Henry C. Lewis in support of said foregoing statement is herewith filed.” The affidavit of said Lewis in support of said motion is as follows: “State of Indiana, * Putnam County ss. Henry C. Lewis being of lawful age, and being first duly sworn, upon his oath says: That he is informed and believes that one Simpson Parker was on the 19th day of May, 1896, in the employ of Cooper Brothers, at
“Subscribed and sworn to this 25th day of May, 1896. Rose A. Gaines, Notary Public.” [Seal.]
No counter affidavits ^were filed by appellees. Courts cannot close their eyes to such palpable violations of duty by jurors as that detailed by this affida