Craggs v. Bohart

Raymond, J. In passing upon the first four assignments of error, it is necessary to refer to the record as filed in this court to see whether or not it contains all of the evidence which was' [452] introduced upon the trial. On page 40 of the printed record will be found this statement: “This was all the testimony introduced on the trial of this cause.” There is a dispute between counsel as to whether or not the record contains all of the evidence introduced. We cannot consider these assignments of error unless the record shows affirmatively that all of the evidence introduced upon the trial is made a part of the record by a bill of exceptions. The statement that this was all the testimony given in the cause is not sufficient. “The statement that the bill of exceptions contains all the evidenec must be made in explicit terms. It will not be sufficient that it contains a recital that ‘this was all the testimony given in the case’, since the word ‘testimony’ is not synonymous with the word ‘evidence.’ Thomp. Trials, p. 2112, § 2784; citing Central Union Tel. Co. vs State, 110 Ind. 203, 10 N. E. 912, 12 N. E. 136. The first four assignments of error are therefore held to be not well taken. As to the fifth, sixth, and eighth assignments of error, in relation to the action of the court in giving instructions asked for by appellee and in refusing instructions offered by appellant it will be seen, by referring to the bill of exceptions: First, that the record does not purport to contain all of the instructions which were given by the court; and, second, no motion for a new trial has been made a part of the record by a bill of exceptions. This is necessary in order to present the matter for our consideration. Smith vs Simpson, 3 Ind. Ter. Rep. 503, (61 S. W. 986.) 1 In disposing of the seventh assignment of error, — that the court erred in refusing to permit appellant to open and close the argument, — it will be seen by reference to the bill of exceptions on page 42 of the printed record, that there was no exception taken by appellant to the action of the court in refusing to permit counsel for appellant to open and close the argument. [453] There being no exception preserved, there is nothing for -ns to consider. Besides, it will be noticed by reference to the answer that the defendant denied the execution of the note as alleged, and that the plaintiff was the owner of the same. Mr. Thompson in his work on Trials, in discussing the right to open and close, in section 228, says'. “The English decisions upon this subject being in a state of confusion, a decision was rendered in the queen’s bench in the year 1845, which settled previous conflicts and established a rule which furnishes an absolute test for the decision of the question in all ordinary actions between plaintiff and defendant. That rule is this: That where the plaintiff has anything to prove in order to get a verdict, whether in an action ex contractu or ex delicto, and whether to establish his right of action or to fix the amount of his damages, the right to begin and reply belongs to him. This rule has been generally adopted in this country. The unvarying test furnished by this rule is to consider which party would, in the state of the pleadings and .the record admissions, get a verdict for substantial damages if the cause were submitted to the jury without any evidence being offered by either. If the plaintiff would succeed, then there is nothing for him to prove at the outset, and the defendant begins and replies. If the defendant would succeed, then there is something for the plaintiff to prove at the outset, and the plaintiff begins and replies.” There is no merit in the appellant’s ninth assignment of error, for the reason that the record does not disclose, any ruling of the court upon the motion to quash the writ of garnishment. The tenth assignment of error — that the court erred in overruling appellant’s motion for a new trial — is without merit because no motion for new trial is made a part of the record by a bill of exceptions. Perceiving no reversible error in the record, the judgment of the court below is affirmed.