Riley v. Allen

154 Ind. 176 | Ind. | 1900

Monks, J.

Appellant asks a reversal of this cause for alleged errors of the trial court in giving certain instructions, and in refusing to give the instructions requested by her.

The instructions given by the court, and the instructions requested by appellant and refused by the court, were not made a part of the record by a bill of exceptions, or an order of court, and the record does not show that those given were filed after they -were given and excepted to, nor that those requested by appellant were filed after being refused and the refusal excepted to. Appellee insists that in such condition of the record the instructions given and those refused are no part of the record, and no question is, therefore, presented concerning the correctness of said instructions, or either one of them. This contention of appellee must be sustained.

It is settled that to make instructions given or refused a part of the record without a bill of exceptions or order of court, they must be filed after being given or refused. Merely writing on the margin, or at the close of each instruction, “Eefused and excepted to”, or “Given and excepted to”, and showing who took said exception, and dating said memorandum, and the judge signing the same, does not make the instructions a part of the record, but after such exception they must be filed, and the record must affirmatively show that fact before they are a part of the record. Krom v. Vermillion, 143 Ind. 75, 77; Louisville, etc., R. Co. v. Wright, 115 Ind. 378, 393, 394, and cases cited; Childress v. Callender, 108 Ind. 394; Blount v. Rick, 107 Ind. 238, 240, 241, and cases cited; Landwerlen v. Wheeler, 106 Ind. 523; Elliott’s App. Proc. §792; Woolen’s Trial Proc. §4063; Ewbank’s Manual §28. Instructions are not a part of the record when merely copied therein. Olds v. Deckman, 98 Ind. 162.

Finding no available error in the record, the judgment is • affirmed.