Thorne v. Indianapolis Abattoir Co.

52 N.E. 147, 152 Ind. 317, 1898 Ind. LEXIS 265

Opinion

Monks, C. J.

Appellant brought this action against appellees, and, at the conclusion of the evidence, the court instructed the jury to return a verdict'in favor of appellees, the defendants in the court below. Appellant’s motion for a new trial was overruled, and judgment rendered in favor of appellees. The errors assigned call in question the action of the court in overruling the motion for a new trial. The causes assigned for a new trial were “(1) that the verdict of the jury is not sustained by sufficient evidence; (2) the verdict of the jury is contrary to law; (3) the court erred in giving instruction number one, being tbe one instructing tbe jury to find for tbe defendants; (4) tbe court erred in refusing to give instructions one, two, and three, requested by plaintiff.”

Appellees insist tbat all tbe evidence is not in tbe record, and tbat, in its absence, neither cause for a new trial presents any question. Tbe proper determination of said causes for a new trial requires a consideration of all tbe evidence given in tbe cause. The bill of exceptions, while it contains at tbe proper place tbe following, “And this was all tbe evidence given in this cause,” affirmatively shows tbat all tbe evidence given is not set forth therein. Such being tbe case, we cannot consider tbe causes assigned for a new trial. Noerr, Adm., v. Schmidt, 151 Ind. 579; Weaver v. Kennedy, 142 Ind. 440, and cases cited; Stout v. Turner, 102 Ind. 418, 420; Jennings v. Durham, 101 Ind. 391; Collins v. Collins, 100 Ind. 266; Louisville, etc., R. Co. v. Grantham, 104 Ind. 353, 357, and cases cited. Tbe judgment is therefore affirmed.