Union City Electric Light & Power Co. v. Jaqua

Black, J. The appellee, as administrator of the estate of John A. Reed, deceased, recovered judgment against the appellant for the death of said John A. Reed, alleged to have been caused by the appellant’s negligence through his coming in contact with a wire rope used by appellant for the suspension of one of its electric lamps and for hoisting and lowering the lamp, said rope being fastened to an upright wooden pole adjoining the sidewalk of a street in Union City, within reach and touch of persons passing along the sidewalk, where the appellee’s intestate came in contact with it when it had become charged with a deadly current of electricity. A considerable portion of the argument on behalf of the appellant is devoted to matters not presented by the record in such manner as to require this court’s decision upon them. Thus, counsel argue at length concerning one of the instructions said by them to have been given to the jury, and concerning the alleged refusal of the court to give certain instructions on the request of the appellant; but, as counsel for appellee have indicated in argument, while none of the instructions requested or of those given are set forth by bill of exceptions, the record does not show that the instructions given or those requested were filed as part of the record, as required by the statute, or that the instructions given by the court of its own motion were signed by the judge, or that any of those requested by a party were signed by the [162] party or his attorney asking the same. See Riley v. Allen, 154 Ind. 116; Green v. Eden, 24 Ind. App. 583; Week v. Widgeon, 23 Ind. App. 405; Hall v. State, 23 Ind. App. 521. The action of the court in sustaining a motion to suppress certain interrogatories which the appellant requested the court to submit to the jury is discussed by counsel, but the appellant failed to save an exception to such action of the court by bill of exceptions. Therefore the argument upon such question is of no avail. One of the causes in the appellant’s motion for a new trial was alleged error of the- court in receiving the general verdict and the jury’s answers to interrogatories in the absence of the appellant, and without giving the appellant an opportunity to require the jury to answer more definitely certain interrogatories, and without giving appellant’s attorney an opportunity to move to require the jury to separately and severally more definitely answer said interrogatories, and in discharging the jury in the absence of the appellant or its attorney without giving the appellant or its attorney such opportunity. There is nothing whatever in the record indicating even remotely the truth of this cause in the motion for a new trial, and counsel for the appellant admit, correctly, the futility of argument upon the subject without a presentation of the matter by bill of exceptions. In the bill of exceptions containing the evidence there are nearly 600 typewritten pages. In the transcript preceding this bill and containing the other portions of the record, the appellant has complied with the rule relating to marginal notes, but has wholly failed to make any marginal notes in the bill of exceptions. Eule thirty of this court, besides requiring the transcript to be paged and the lines of the pages to be numbered, provides that the appellant shall cause marginal notes to be placed on the transcript in their appropriate places, indicating the several parts of the plead [163] ings in the canse, the exhibits, if any, the orders of the court, and the bills of exceptions; and that where the evidence is set out by deposition or otherwise, the names of the witnesses shall be stated in the margin, etc. Among the causes stated in the appellant’s motion for a new trial and meagerly argued are a large number questioning rulings of the court relating*'to the examination of witnesses on the trial; also the specification that the verdict is not sustained by sufficient evidence. To give consideration to these matters would involve the examination of the bill of exceptions as to which the appellant has neglected to comply with the express requirements of the rules of this court, as above indicated. It has been held that such rules have the force and effect of rules of law, and that parties and counsel must obey them; that they are not merely directory, and may not be ignored or disregarded ; and that it is not only the right, but the duty, of the court to enforce them. Smith v. State, 137 Ind. 198; Smith v. State, 140 Ind. 340; Harrod v. State, 24 Ind. App. 159. Where there is a general disregard of the rule in question in the preparation of a transcript for this court, the appeal may properly be dismissed; and where, as here, in the entire portion of the record relating to the proceedings upon the trial there is a failure to make any of the marginal notes expressly required by the rule, it would seem to be the duty of this court not to consider questions for whose proper determination an examination of the portion of the record thus deficient would be required. The fifty-ninth cause in the motion for a new trial was: “The court erred in overruling the defendant’s motion for a judgment on the interrogatories, notwithstanding the general verdictand counsel for appellant have devoted some portion of their brief to a discussion of this cause for a new trial. Plainly, if there could be any error in overruling such a motion, it would not be cause for a new trial. [164] There is a specification in the appellant’s assignmeüt of errors, which is not discussed in argument, as follows: “The court erred in overruling appellant’s motion for a judgment on interrogatories, notwithstanding the general verdict.” If we should he disposed to apply the argument of appellant upon the fifty-ninth cause for a new trial to the assignment of error above quoted, in similar language, yet counsel have not in that argument referred to the place in the record where a motion of the appellant for judgment may be found; and if there was a motion in the language of the quoted specification in the assignment of errors, it could not be treated as a motion properly presenting any question to the trial court, and if there was a materially different motion the assignment of error would not be applicable to it. See Storrs & Harrison Co. v. Fusselman, 23 Ind. App. 293. There was an affirmative answer in a single paragraph which in the typewritten transcript is four pages in length, with an exhibit four pages long. The court upon motion struck out a number of parts of this answer, but in the record entry before us these parts are indicated by references to pages and lines of the answer filed in the court below, and therefore it is impossible to determine with the requisite certainty what parts were struck out. The reply was a general denial, filed after the court had so struck out parts of the answer. Therefore, the appellant has brought to this court a transcript which does not show certainly the issues tried. In such a case this court will not pass upon the action of the trial court in overruling an appellant’s motion for judgment in his favor upon the special findings notwithstanding the general verdict, or upon the question as to the sufficiency of the evidence, or upon the action of the court in giving or in refusing to give instructions. See Fairbank v. Lorig, 4 Ind. App. 451; DeKalb Nat. Bank v. Nicely, 24 Ind. App. 147. Judgment affirmed.