Dennerline v. Gabb

1 Ind. L. Rep. 333

• Court: Indiana Supreme Court
• Decided: May 19, 1881
• Status: Published

Opinion

Opinion of the court by

Mr. Justice Elliott.

The appellant asks a reversal upon the ground that the trial court gave the jury an erroneous instruction. The only ruling discussed in counsel’s brief is that based upon the third instruction, which counsel say was given by the court upon its own motion.

What in form appear to be instructions are copied into the record, but they are not incorporated in a bill of exceptions, nor are they signed by the judge. Appellees insist that the instructions are not properly in the record. The appellees are right. It is settled that instructions given by the court upon its own motion must be signed by the judge, or brought into the record by a bill of exceptions. Etter v. Armstrong, 46 Ind. 197 ; Jeffersonville, etc., Co. v. Cox, 37 Ind. 325; Sibbitt v. Stryker, 62 Ind. 41.

If the instructions were in the record we could not consider the question argued by counsel for the reason that the evidence is not before us. In the absence of the evidence we must presume the instruction to have been properly given, for it asserts a proposition of law which is not in itself erroneous, but which upon a proper state of facts might be entirely relevant and proper.

Judgment affirmed.