Otis v. Weiss

Henley, J. — The assignment of errors in this cause, omitting the caption and conclusion, is as follows: (1) The damages assessed by the jury are excessive. (2) The assessment of the amount of recovery is erroneous, being too large. (3) The verdict of the jury is not sustained by sufficient evidence. (4) The verdict of the jury is contrary to law. (5) The court erred in giving instructions numbered five, six, seven, eight, nine, eleven, twelve, and thirteen. (6) Overruling appellants’ motion for a new trial. The first five specifications present no question for review to this court. They only embody reasons properly assignable in a motion for a new trial. Neither does the sixth specification present to this court any of the questions argued by counsel for appellant. The bill of exceptions containing the evidence is not a part of the record. The record does not show in a proper manner that the bill of exceptions was filed in the clerk’s office after its signature by the trial judge. It is not incorporated into the transcript, and is not certified to be, nor identified as a bill of exceptions by the clerk of the trial court. See McCormick Harvesting Co. v. Smith, 21 Ind App. 617, and cases cited. The instructions are not in the record. The record does not show that as such instructions they were filed in the clerk’s office as a part of the 163 papers in the canse. This is imperative where it is attempted to make the instructions a part of the record without a bill of exceptions. Steeg v. Walls, 4 Ind. App. 18; Ft. Wayne, etc., R. Co. v. Beyerle, 110 Ind. 100; Loeb v. McAlister, 15 Ind. App. 643; Fitzmaurice v. Puterbaugh, 17 Ind. App. 318. But the record in the cause presents a further objection on account of which this cause must be dismissed. Rule number thirty of this court has been wholly disregarded. It has been held often by this court and the Supreme Court that it is not only the right, but the duty, of the court to enforce these rules. Babcock v. Johnson, ante, 91, and cases cited. The appeal is therefore dismissed.