Lofland v. Goben

Ross, J. The appellee brought this action against the appellant upon two promissory notes. Upon issues formed the cause was tried before a jury, resulting in a verdict in favor of appellee upon which judgment was rendered. The only specification of error assigned in this [68] court is, “The court erred in overruling the motion for a new trial.” Complaint is made of several of the instructions given by the court. These instructions, in the main, state the law correctly. In considering the correctness or incorrectness of certain instructions given,it is necessary to consider all of the instructions given, and if when all are considered together they state the law correctly, it is not error if some particular instruction or part of an instruction is incomplete or inaccurate. The appellant attacks and seeks to overthrow separate instructions or parts thereof without considering them with reference to the other instructions given. That is not the rule by which the sufficiency of an instruction is tested. Patchell v. Jaqua, 6 Ind. App. 70; Beugnot v. State, exrel. 11 Ind. App. 620; Evansville, etc., R. R. Co. v. Talbot, 131 Ind, 221; Deilks v. State, 141 Ind. 23. It is next urged that the court erred in refusing to give the following instruction tendered by the appellant, viz.: “If you believe from the evidence that the sole and only consideration for the notes in suit was the sale and conveyance of a patent right and that the notes did not contain the words, ‘given for a patent right,’ or words of like import, and that plaintiff accepted said notes with full knowledge that they had been given for a patent right, then this plaintiff can not recover on them and your verdict should be for defendant.” This instruction, so far as we have been able to discover, states the law correctly, was applicable to the evidence introduced to sustain the issues and was not covered by any other instruction or instructions given. The evidence was conflicting as to whether or not the notes sued on were given for an interest in a patent right and that was one of the issues being tried, hence the appellant was entitled to [69] have the jury instructed upon that question. But counsel for the appellee insist that the appellant can not have a reversal for the refusal to give this instruction because the record dóes not show that it was tendered to the court after the close of the evidence and béfore the commencement of the argument to the jury. The statute, clause 4, section 542, Burns’ R. S. 1894 (533, R. S. 1881), provides that “when the evidence is concluded, and either party desires special-instructions to be given to the jury, such, instructions shall be reduced to writing, numbered and signed by the party or his attorney asking the same, and delivered to the court.” Unless the record affirmatively shows that the instructions tendered and refused were tendered to the court before the argument was commenced it will be assumed that the court refused such instructions because not tendered in time. Kackley v. Evansville, etc., R. R. Co., 7 Ind. App. 169; Puett v. Beard, 86 Ind. 104; Hege v. Newsom, 96 Ind. 426; Welsh v. State, 126 Ind. 71, 9 L. R. A. 664; Citizens’ Street R. R. Co. v. Hobbs, 15 Ind. App. 610. The presumptions that arise in favor of the correctness of the rulings of the trial court impose upon one asking a reversal to present a record which affirmatively rebuts such presumptions. No such showing is presented by the record before us. The judgment is affirmed.