Muncie & Portland Traction Co. v. Black

Monks, J. Appellee Black filed exceptions to the award of the appraisers in this proceeding which was brought under §§893-904 Burns 1905, Acts 1905, p. 59, for the purpose of condemning a right of way across said appellee’s real estate. The only error properly assigned calls in question the action of the court in overruling appellant’s motion for a new trial. The giving of instructions three, four and seven,' requested by said appellee, was assigned as cause for a new trial. Said appellee insists that no exceptions were reserved to said instructions, and that therefore the record presents no question as to their correctness. 1. At the close of the instructions requested by said appellee, there is a memorandum, in writing, setting forth that appellant excepts to the giving of instructions three, four and seven, requested by said appellee, which memorandum is dated and signed by the trial judge, It [144] complies with the requirements of section one of the act of 1903 (Acts 1903, p. 338, §544a Bums 1905), which was in force when the ease was tried in the court below, but it is not signed by the appellant or its counsel, as «said act requires. It is evident, therefore, that said exceptions were not properly taken under section one of said act. 2. Even if since the enactment of said act of 1903 exceptions to instructions may yet be taken under §§558, 560 Burns 1908, §§533, 535 R. S. 1881, which authorize the trial judge to sign the same (Hoffbauer v. Morgan [19090], 172 Ind. 273), said exceptions were not properly taken thereunder, because not written on .the margin or at the close of each instruction excepted to, as required by §560, supra. Malott v. Hawkins (1902), 159 Ind. 127, 138; Roose v. Roose (1896), 145 Ind. 162, 164. 3. 4. [145] 5. [144] In the case last cited the only statement showing that exceptions were taken was the following at the close of the instructions : “To the giving of each of the instructions, severally, plaintiff at the time duly excepted. ’ ’ The court said at pages 164, 165: ‘ ‘ This was not in compliance with the requirements of the section of the code to which we have referred [§560, supra], so as to be available, to the complaining party. The exception must be noted, either on the margin or at the close of each instruction, which written notation must be dated and signed by the trial judge. This the statute requires in plain, imperative terms, not open to construction.” Instructions three, four and seven, claimed by appellant to have been given by the court at the request of appellees, are not in the record, because the same were not signed by the judge, as required by the sixth subdivision of §558, supra. Nor was there any memorandum in writing, signed by the judge, indicating by number which of said instructions requested by appellees were given and which refused, as required by :§561 Burns 1908, Acts 1907, p. 652. Nor did the judge sign any memorandum in writing at the close of the instruc [145] tions requested by appellees, showing which of said instructions were given and which refused, as required by §544a, supra. It is evident, therefore, that the record presented no question concerning the correctness of said instruction. 6. The court refused to allow the jury to take to the jury room the award of the appraisers, denied appellant’s counsel permission to state the contents of said award in his opening statement to the jury, and permitted the jury to take the exceptions of appellees to said award. Each of these rulings was assigned as a cause for a new trial. Substantially the same question was presented in Muncie, etc., Traction Co. v. Halt (1909), ante, 95, and upon the authority of that case we hold that no reversible error was committed by the court in any of the rulings complained of. No available error appearing in the record, the judgment is affirmed.