Nov. Term, 1856. IRWIN V. ANTHONY. Friday, January 16, 1857. IRWIN v. ANTHONY. When the evidence is not in the record, the opinion of a court in overruling a motion for a new trial, will not be reviewed. And even if the evidence be in the record, the opinion of the court must have been excepted to at the proper time, or no question is presented. A bill of exceptions taken at a term subsequent to that at which the decision excepted to was made no exception having been taken at the time the decision was delivered-comes too late, and will not be regarded as part of the record on appeal. APPEAL from the Wayne Court of Common Pleas. Per Curiam.-Anthony sued Irwin before a justice of the peace, and had judgment for 37 dollars and 59 cents. Irwin appealed to the Circuit Court, where there was a second jury trial, and judgment on the verdict for Anthony for 69 dollars and 75 cents. Motion for a new trial overruled; but the evidence is not in the record. There is only one exception taken by Irwin to the ruling of the Court. It appears that at the April term, 1855, the appeal was dismissed at Irwin's instance; but reinstated at the same term on affidavit, and the cause continued. At the January term, 1856, the parties appeared by counsel and went to trial. The verdict was rendered on the 11th of January, 1856, and on the 15th of the same month Irwin tendered his bill of exceptions to the opinion of the Court given in April, 1855, reinstating the cause on the docket. Held, that, the evidence not being in the record, the opinion of the Court in overruling the motion for a new trial cannot be reviewed. Dougherty v. The State, 5 Ind. R. 453 (1). Held, further, that even if the evidence had been in the record, yet as the opinion of the Court in that behalf was not excepted to there was no question raised in the record. Zehnor v. Beard, at the present term (2). Held, also, that the bill of exceptions taken at the January term, 1856, to the ruling of the Court in April, 1855, no exception being taken at the time the decision was made, was too late, and could not be regarded as any part of the record. Nov. Term, 1856. Judgment affirmed with 5 per cent. damages and THE NEW AL costs. J. S. Newman and J. P. Siddall, for the appellant. C. H. Test and J. M. Wilson, for the appellee. (1) Vide Doe v. Herr, ante, 23, 24. (2) Ante, 96. BANY & SALEM V. CALLOW. THE NEW ALBANY AND SALEM RAILROAD COMPANY v. CALLOW. A decision not excepted to below, cannot be assigned for error in this Where the evidence is not in the record, instructions given to the jury A bill of exceptions showing only a part of the evidence, is insufficient, unless it show a question reserved under section 347 of the practice act. It is due to the lower Court to presume in its favor, unless the pleader shows it by the record to be clearly in error. The Supreme Court will indulge in no presumption against the ruling of the inferior courts. APPEAL from the Tippecanoe Court of Common Friday, Pleas. STUART, J.-Callow sued the company for injuries received by the alleged carelessness of her agents operating the road. Demurrer to the complaint overruled. The cause went to trial by jury, and Callow had judgment for 225 dollars. Motion for a new trial overruled, and appeal. 1. The first error assigned is the overruling the demurrer to the complaint. As this ruling was not ex January 16, 1857. Nov. Term, THE NEW AL- V. cepted to by the company, it is not available on error in this Court. Zehnor v. Beard at the present term (1). The 2. The Court erred in sustaining the demurrer to the RAILROAD CO. second and third paragraphs of the defendant's answer. This error is also unavailing for the same reason. party did not except to the ruling at the time. Zehnor v. Beard, supra. CALLOW. 3. The third error assigned is to the instructions given and the fourth, to those refused. There is nothing in the instructions given manifestly wrong in itself under any state of facts. The evidence is not in the record. We therefore presume that those given were proper in the case made, and those refused irrelevant. Part of the evidence appears in the bill of exceptions; but the bill neither purports nor pretends to set out all the evidence. We cannot, therefore, notice those assignments. Murray v. Fry, 6 Ind. R. 371. It is due to the lower courts to presume in their favor, unless the pleader shows them by the record to be clearly in error. We will indulge in no presumption against the ruling of the lower courts. It may be added, that the bill of exceptions containing part of the evidence, does not assume to reserve a question for this Court, under the 347th section of the practice act. 2 R. S. p. 116. For the reasons above given, the fifth error assigned, overruling the motion for a new trial is unavailing. As the evidence is not in record we cannot determine the correctness of this ruling. This point has been decided so often, both under the old and new practice, that it would be needless to cite authorities. Every volume of our Reports is full of it. It is due to the pleaders to say that they correctly wrote under the instructions in relation to which they differed with the ruling of the Court, "refused and excepted to," or "given and excepted to." This is in conformity to the statute. Exceptions thus taken are to be signed by the attorney as was done here. 2 R. S. p. 112. And they were correctly taken at the time the decision Nov. Term, 1856. THE NEW AL BANY & SALEM was made. Id. p. 115. But either the evidence should have all been set out in the record; or a case should have been reserved under section 347, supra. Starry v. Winning, 7 Ind. R. 311. Such partial glimpses of the RAILROAD Co. evidence are unavailing, unless made up under the direction of the Court, agreeably to section 347, supra. Per Curiam.-The judgment is affirmed with 3 per cent. damages and costs. H. W. Chase and J. A. Wilstach, for the appellants. (1) Ante, 96. v. CALLOW. THE SAME CASE. ON PETITION for a Rehearing (1). Per Curiam.-The point on which the petition for a rehearing is rested, is decided at the May term, 1857, in the Jeffersonville Railroad Company v. Butler, (2). To avoid the embarrassment constantly occurring in giving construction to ambiguous language, as in the case of Montgomery v. Doe, 4 Ind. R. 266, the 30th rule was adopted. Its policy to secure accuracy, and to lead this Court at once to the main question, is obvious; and compliance with it easy. The petition is overruled. (1) The opinion overruling the petition for rehearing was delivered on the 21st of May, 1857; but for convenience it is printed here. (2) Post, vol. 9 of these Reports. Nov. Term, 1856. THE PRESI DENT, &C., OF V. KESSLER. Friday, January 16, 1857. WATSON v. STRAUGHAN. APPEAL from the Hendricks Circuit Court. Per Curiam.-This case falls within Matlock v. Strange, at the present term, and is reversed with costs, and remanded for further proceedings (1). C. C. Nave and J. Witherow, for the appellant. (1) Ante, 57. Friday, January 16, 1857. THE PRESIDENT, &c., OF LAMASCO CITY v. KESSLER and APPEAL from the Vanderburgh Circuit Court. Per Curiam.-This case falls within Zehnor v. Beard, at the present term (1). The judgment is affirmed with costs. J. Law, O. H. Smith, and H. Plumer, for the appellants. A. P. Hovey, for the appellees. (1) Ante, 96. The President, &c., of the Terre Haute and Richmond Railroad Company v. Mc Cormack, on appeal from the Hendricks Circuit Court, was this day affirmed for the same reason. H. C. Newcomb and J. S. Harvey, for the appellants. C. C. Nave, for the appellee. |