Johnson v. Johnson

60 N.E. 451, 156 Ind. 592, 1901 Ind. LEXIS 93

• Court: Indiana Supreme Court
• Decided: May 17, 1901
• Docket: No. 19,311
• Status: Published

Opinion

Monks, J.

Appellee brought this action against appellants on two promissory notes, signed by appellant James Johnson, payable to James N. Johnson. It was averred that “said promissory notes were assigned and transferred by said payee by delivery, for a valuable consideration to appellee, who is the owner thereof; that said James N. Johnson-died, and afterwards, appellant Solomon Johnson was duly appointed administrator of his said estate, and he is made a party defendant to answer as to any interest said estate may have in said notes.” Appellant James Johnson filed a plea of non est factum as to both of said promissory notes. Appellant Solomon Johnson, administrator, answered by a general denial. A trial by jury resulted in a verdict for appellee for $7,196.29, and over a separate motion by each appellant for a new trial a judgment was rendered for said sum against appellant James Johnson, and it was adjudged that the estate of James N. Johnson had no interest in said promissory notes. The errors assigned and not waived by a failure to argue the same, call in question the action of the court in overruling the separate motion of each appellant for a new trial.

It is first insisted by appellee that no bill of exceptions containing the evidence is in the record. Appellants filed a precipe as provided in §661 Burns 1894, §649 R. .S. 1881 and Horner 1897, and designated what papers and entries the clerk should certify to this court. Only such papers and entries as are designated in said precipe are properly a part of the record on appeal. Said precipe did not direct or request the clerk to certify to this court said original bill of exceptions containing the evidence, in any manner. Hnder such conditions if said original bill of exceptions containing the evidence was embodied in the tránscript, and properly authenticated, the same would not be a part of the record and could not be considered. McCaslin v. Advance Mfg. Co., 155 Ind. 298, and cases cited; Brown v. Armfield, 155 Ind. 150.

Said bill of exceptions is not jn the record and can not be considered for another reason. After the general certificate of the cleric that the “transcript contains true and complete copies of all the papers and order-book entries in the cause,” there is attached to the transcript what purports to 'be an original bill of exceptions containing the evidence.

Two special certificates of the clerk of the trial court are attached at the close of the original bill of exceptions containing the evidence, but the seal of the trial court is not affixed to either of said certificates. Without such seal, said certificates are of no effect for any purpose. Fidelity, etc., Union v. Byrd, 154 Ind. 47; Carpenter v. Schaeffer, 154 Ind. 694; Board, etc., v. State, ante, 550.

The general certificate of the clerk should not precede or form a part of the bill of exceptions containing the evidence, but should be at the conclusion of the transcript, and authenticate the bill of exceptions containing the evidence, as well as all other papers and entries embraced in the transcript. Ewbank’s Manual, §117, p. 177, and cases cited.

Each appellant assigned the giving of instructions three, four, and seventeen, requested by appellee, as causes for a new trial. The evidence not being in the record, neither one of said instructions can be held erroneous if the same would be correct under any evidence that might have been given under the issues. Wenning v. Teeple, 144 Ind. 189, 194.

The part of instruction three objected to is as follows: “The said administrator, Solomon Johnson, has filed an answer of simple general denial to each paragraph of the complaint. The effect of the administrator’s answer is simply to deny that the deceased James N. Johnson had assigned the two .promissory notes to the .plaintiff,, and nothing more.” It is insisted that under the provisions of §2479 Burns 1894, §2324 Horner 1897, all defenses except set-off and counterclaim could have been proved .by the administrator without answer, and that therefore this instruction was erroneous. Said §2479 (2324), supra, cited by appellants, is contained in the decedent’s act, and refers to claims filed against estates and transferred to the docket for trial. This was not a claim filed against an estate, but the administrator of the estate of the assignor was made a party defendant as required by §277 Burns 1894, §276 R. S. 1881 and Horner 1897, to answer as to said assignment or the interest of the estate in the subject of the action. Said §2479 (2324), supra, has no application to this case.

By instruction four, the court said, in substance, that if the jury returned a general verdict for. the plaintiff on either of the promissory notes, the effect would be a finding that the estate had no interest in such note. This instruction was not erroneous.

In the seventeenth instruction requested by appellee, the court called the attention of the jury to what it was their duty to consider in determining the weight they should give to the testimony of witnesses sought to be impeached. It is not shown by the record that it was sought to impeach any of appellant’s witnesses. No party can take advantage of an error committed by a court except the one against whom it was committed. Wiley v. Coovert, 127 Ind. 559; Ewbank’s Manual, §257, p. 365.

In this court every presumption is indulged in favor of the decision of the trial court, and the appellant must clearly show by the record the particular error or errors upon which he-relies, and that they affect him. Even if said instruction was erroneous, as there is nothing in said instruction, or elsewhere in the record, showing that said error was committed against appellants, they cannot take advantage of it. But if it was shown by the record that evidence had been,

given on tbe trial, tending to impeach some of appellants’ witnesses, the giving of’ said instruction was not prejudicial, even against appellants, for the reason that, while there may have been some verbal inaccuracies'in said instruction, yet when read.in connection with the other instructions given on that subject the law was fairly presented to the jury, under the rule declared in Deal v. State, 140 Ind. 354; Smith v. State, 142 Ind. 288; White v. State, 153 Ind. 689, 691, 692. See, also, Shields v. State, 149 Ind. 395, 406, 407.

Judgment affirmed.