Bell v. Randolph

Indiana Court of Appeals

Bell v. Randolph

84 N.E. 1003, 42 Ind. App. 1, 1908 Ind. App. LEXIS 1

CourtIndiana Court of Appeals

DecidedJune 2, 1908

DocketNo. 6,462

StatusPublished

This text of 84 N.E. 1003 (Bell v. Randolph) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bell v. Randolph, 84 N.E. 1003, 42 Ind. App. 1, 1908 Ind. App. LEXIS 1 (Ind. Ct. App. 1908).

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Opinion

Rabb, C. J.

— This case is before this court upon a partial record of the proceedings had in the court below. The transcript before us discloses that appellants filed a complaint in the court below in two paragraphs, only the second of which appears in the record. The appellees filed a cross-complaint in two paragraphs, only the second of which appears in the record. Issues were formed upon both the complaint and the cross-complaint, as appear by the record before us. These issues were submitted to a jury for trial, and upon them a general verdict was returned in favor of appellees, together with answers to interrogatories, which appear in the record. A bill of exceptions, setting out the court’s instructions to the jury, also appears in the record, but the evidence is not incorporated in the bill of exceptions. A motion was made in the court below by the appellants for a judgment in their favor upon the answers to the interrogatories notwithstanding the general verdict, and the action of the court in overruling this motion is the only alleged error presented here as ground for a reversal.

1. No question is presented by this record upon the action of the court in overruling this motion, for the reason that the first paragraph of the complaint and the first paragraph of the cross-complaint are not presented in the record. The verdict of the jury was upon all the issues in the ease, and what, issues were presented by these pleadings we are not advised.

Counsel for appellants rely upon the fact that the court, in its instructions to the jury, states that “the amended complaint consists of one paragraph,” and that the “defendant Thomas R. Randolph has filed a cross-complaint, the second paragraph of which is before you,” as establishing the fact that the sole issues presented to the jury were those arising upon the second paragraph of the complaint and the second paragraph of the cross-complaint.

[3]*32. [2]*2This court, however, must determine what issues were presented to the jury by the record. The record discloses that [3]*3the issues in the ease were submitted to the jury for trial, and it discloses affirmatively that issues were formed upon both the first paragraph of the complaint and the first paragraph of the cross-complaint, and it nowhere is shown by the record that either of these paragraphs was withdrawn or dismissed.

3. The dismissal of the cause as to one of the defendants did not have the effect to dismiss either paragraph of the complaint, and the order-book entries of the record in the ease are controlling as to what issues were presented to the jury for trial, over the instructions given by the court to the jury, when there is a conflict between them. Such being the state of the record, we think that no error is disclosed.

The judgment of the court below is affirmed.

Roby, J., absent.

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Rabb, C. J.

— This case is before this court upon a partial record of the proceedings had in the court below. The transcript before us discloses that appellants filed a complaint in the court below in two paragraphs, only the second of which appears in the record. The appellees filed a cross-complaint in two paragraphs, only the second of which appears in the record. Issues were formed upon both the complaint and the cross-complaint, as appear by the record before us. These issues were submitted to a jury for trial, and upon them a general verdict was returned in favor of appellees, together with answers to interrogatories, which appear in the record. A bill of exceptions, setting out the court’s instructions to the jury, also appears in the record, but the evidence is not incorporated in the bill of exceptions. A motion was made in the court below by the appellants for a judgment in their favor upon the answers to the interrogatories notwithstanding the general verdict, and the action of the court in overruling this motion is the only alleged error presented here as ground for a reversal.

1. No question is presented by this record upon the action of the court in overruling this motion, for the reason that the first paragraph of the complaint and the first paragraph of the cross-complaint are not presented in the record. The verdict of the jury was upon all the issues in the ease, and what, issues were presented by these pleadings we are not advised.

Counsel for appellants rely upon the fact that the court, in its instructions to the jury, states that “the amended complaint consists of one paragraph,” and that the “defendant Thomas R. Randolph has filed a cross-complaint, the second paragraph of which is before you,” as establishing the fact that the sole issues presented to the jury were those arising upon the second paragraph of the complaint and the second paragraph of the cross-complaint.

[3]*32. [2]*2This court, however, must determine what issues were presented to the jury by the record. The record discloses that [3]*3the issues in the ease were submitted to the jury for trial, and it discloses affirmatively that issues were formed upon both the first paragraph of the complaint and the first paragraph of the cross-complaint, and it nowhere is shown by the record that either of these paragraphs was withdrawn or dismissed.

3. The dismissal of the cause as to one of the defendants did not have the effect to dismiss either paragraph of the complaint, and the order-book entries of the record in the ease are controlling as to what issues were presented to the jury for trial, over the instructions given by the court to the jury, when there is a conflict between them. Such being the state of the record, we think that no error is disclosed.

The judgment of the court below is affirmed.

Roby, J., absent.

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Bluebook (online)

84 N.E. 1003, 42 Ind. App. 1, 1908 Ind. App. LEXIS 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bell-v-randolph-indctapp-1908.