178 Ind. 217 | Ind. | 1912
Appellants brought an action against appellees in the Marion Probate Court to contest the will of Bennett Barnett. Trial by jury; verdict and judgment for appellees.
No attempt has been made in appellants’ brief to set out the above motions, or the substance thereof, except the motion for a new trial, and consequently it, alone, will be considered. Among the reasons assigned for a new trial was the alleged erroneous exclusion of certain offered testimony of Doctor Woodard; also the alleged erroneous admission in evidence of certain testimony of Mayer Messing.
Statements in a motion for a new trial, of alleged errors occurring at the trial, cannot be accepted as true by this court, unless verified by the record. As the bill of exceptions containing the matters complained of is not in the record, no question in relation to the admission or exclusion of evidence is here presented for review. Siebert v. State (1884), 95 Ind. 471, 477; Heckelman v. Rupp (1882), 85 Ind. 286; Graeter v. Williams (1877), 55 Ind. 461; Hyatt v. Clements (1878), 65 Ind. 12.
Appellees, however, assert that no question on the instructions is presented for review, because, in the motion for a new trial, the alleged error of the trial court is predicated on all the instructions given, twenty-two in number, and consequently there was no available error, unless all the instructions given were erroneous. We think this contention must prevail. It has been often decided by this court that where the motion for a new trial specifies error, jointly or in gross, in the giving of a series of instructions, all of the instructions so joined in the series must be erroneous, or the error assigned thereon is unavailable. Sutherlin v. State (1886), 108 Ind. 389, 9 N. E. 298; Ohio, etc., R. Co. v. McCartney (1890), 121 Ind. 385, 23 N. E. 258; Cincinnati, etc., R. Co. v. Madden (1893), 134 Ind. 462, 34 N. E. 227; Robinson v. Hadley (1860), 14 Ind. 417; Elliot v. Woodward (1862), 18 Ind. 183; Hoover v. Weesner (1897), 147 Ind. 510, 45 N. E. 650, 46 N. E. 905, and eases cited; Jones v. State (1903), 160 Ind. 537, 67 N. E. 264. In the latter case this court said: “The rule that objections to decisions of the court should be specific and several, instead of general and in gross, where the errors relied on relate to several distinct subjects, has been applied so frequently and in such a variety of cases that it would seem that it could not be misunderstood or overlooked.”
As no complaint whatever is made against the instructions, except as above noted, we are constrained to hold that no question on instructions given is here presented for review. There is no error in the record. Judgment affirmed.
Note.—Reported in 97 N. E. 790. See, also, under (1) 2 Cyc. 1014; (2) 3 Cyc. 37, 46; (3) 2 Cyc. 1083; (4) 29 Cyc. 949.