173 Ind. 142 | Ind. | 1909
Appellee Black filed exceptions to the award of the appraisers in this proceeding which was brought under §§893-904 Burns 1905, Acts 1905, p. 59, for the purpose of condemning a right of way across said appellee’s real estate.
The only error properly assigned calls in question the action of the court in overruling appellant’s motion for a new trial. The giving of instructions three, four and seven,' requested by said appellee, was assigned as cause for a new trial.
Said appellee insists that no exceptions were reserved to said instructions, and that therefore the record presents no question as to their correctness.
At the close of the instructions requested by said appellee, there is a memorandum, in writing, setting forth that appellant excepts to the giving of instructions three, four and seven, requested by said appellee, which memorandum is dated and signed by the trial judge, It
Even if since the enactment of said act of 1903 exceptions to instructions may yet be taken under §§558, 560 Burns 1908, §§533, 535 R. S. 1881, which authorize the trial judge to sign the same (Hoffbauer v. Morgan [19090], 172 Ind. 273), said exceptions were not properly taken thereunder, because not written on .the margin or at the close of each instruction excepted to, as required by §560, supra. Malott v. Hawkins (1902), 159 Ind. 127, 138; Roose v. Roose (1896), 145 Ind. 162, 164.
The court refused to allow the jury to take to the jury room the award of the appraisers, denied appellant’s counsel permission to state the contents of said award in his opening statement to the jury, and permitted the jury to take the exceptions of appellees to said award. Each of these rulings was assigned as a cause for a new trial. Substantially the same question was presented in Muncie, etc., Traction Co. v. Halt (1909), ante, 95, and upon the authority of that case we hold that no reversible error was committed by the court in any of the rulings complained of.
No available error appearing in the record, the judgment is affirmed.