176 Ind. 441 | Ind. | 1911
Appellant, who was the owner of a certain lot in Michigan City, with a building on it, sued appellees — one the owner of an adjoining lot and the other a contractor— to recover damages for injury to her property, caused by the removal of the lateral support, by digging up and carrying away her soil and by erecting a brick wall upon her ground.
Issues were joined on three paragraphs of her complaint, and a trial by jury resulted in a verdict and judgment for appellees.
The only errors presented as cause for reversal are based on the giving of certain instructions by the court, and its refusal to give instructions tendered by appellant.
The certificate of the clerk is “that the above and fore.going transcript contains full, true and correct copies of all papers and entries in said cause, except that the bill of exceptions containing the evidence and the court’s instructions to the jury is the original, as required by the foregoing precipe.”
The exception must at least be taken during the term, and before the ruling on the motion for a new trial, and an undated memorandum stating an exception conveys no knowledge as to whether this was done. An exception, when taken, in writing under this section, is not taken until the memorandum is signed and dated. Providence Washington Ins. Co. v. Wolf (1907), 168 Ind. 690, 120 Am. St. 395; Inland Steel Co. v. Smith (1907), 168 Ind. 245. Nor can a recital in such a memorandum, that “plaintiff at the time of the giving of the within instructions” excepted thereto, import the verity, and take the place of an entry on the minutes of the court showing an oral exception taken.
The judgment of the lower court is affirmed.