New Albany & Salem Railroad v. Callow

8 Ind. 471

• Court: Indiana Supreme Court
• Decided: January 16, 1857
• Status: Published

Opinion

Stuart, J.

Callow sued the company for injuries received by the alleged carelessness of her agents operating the road. Demurrer to the ■ complaint overruled. The cause went to trial by jury, and Callow had judgment for 225 dollars. Motion for a new trial overruled, and appeal.

1. The first error assigned is the overruling the demurrer to the complaint. As this ruling was not excepted to by the company, it is not available on error in this Court. Zehnor v. Beard at the present term

(1).

2. The Court erred in sustaining the demurrer to the second and third paragraphs of the defendant’s answer. This error is also unavailing for the same reason. The party did not except to the ruling at the time. Zehnor v. Beard, supra.

8. The thii’d error assigned is to the instructions givexx and the fourth, to those refused. There is nothing in the instructions given manifestly wrong in itself under any state of facts. The. evidence is not in the x'eeord. "We therefore presume that those given wex’e proper in the case made, and those refused irrelevant. Part of the evidence appeax’s in the bill of exceptions; but the bill neither purports nor pretends to set out all the evidence. "We cannot, thex’efox’e, notice those assignments. Murray v. Fry, 6 Ind. R. 371. It is due to the lower courts to px’esume in théir favor, unless the pleader shows them by the record to be clearly in error. ¥e will indulge in no presumption against the reding of the lower courts. .

It may be added, that the bill of exceptions containing part of the evidence, does not assume to reserve a questioxx for this Court, under the 347th section of the practice act. 2 R. 8. p. 116.

Eor the reasons above given, the fifth error assigned, overruling the motion for a new trial is unavailing. As the evidence is not in record we cannot determine the correctness of this ruling. This point has been decided so often, both under the old and new practice, that it would be needless to cite authorities. Every volume of our Reports is full of it.

It is due to the pleaders to say that they correctly wx’ote under the instructions in relation to which they differed with the ruling of the Court, “refused and excepted to,” or “given and excepted to.” This is in conformity to the statute. Exceptions thus taken are to be signed by the attorney as was done here. 2 R. S. p. 112. And they wex’e correctly taken at the time the decision was made. Icl. p. 115. ' But either the evidence should have all been set out.in the record; or a case have been reserved under section 347, supra. Starry v. Winning, 7 Ind. R. 311. Such partial glimpses of the evidence are unavailing, unless made up under the direction of the Court, agreeably to section 347, supra.

H. W. Chase and J. A. Wilstaeh, for the appellants. (?. S. Orth and J. A. Stein, for the appellee.

Per Curiam.

The judgment is affirmed with 3 per cent, damages and costs.

Ante, 96.