ON PETITION FOR REHEARING The appellants have filed their petition for a rehearing and assign as one of the grounds therefor *Page 316 that we erroneously declined to consider their alleged error concerning the action of the trial court in overruling their motion for a venire de novo. In the original opinion of this court, it was said: "The appellants moved for a venire de novo on the ground that the verdict of the jury was so `uncertain, indefinite and insufficient,' as to render it impossible to enter judgment thereon. The trial court, at the time it was called to rule upon said motion, had this verdict before it and was well in a position to determine whether it was `uncertain,' `indefinite,' or `insufficient.' The appellees called attention to the fact that the appellants, in their brief filed herein had wholly failed to embody said verdict in their said brief and thus place it before us for our consideration. That where a paper or a pleading is the foundation of any motion, or demurrer, such paper or pleading must be set out, on appeal, in the brief, has long been settled. The verdict of which complaint is made, not being set out, no question is presented for our consideration by this assignment."
In this case, to speak of the conduct of counsel for appellant who prepared the briefs herein in mildness and with charity for the seeming frailness of human nature, they have permitted their zeal for their cause "to blind their discernment and their judgment," and have boldly gone so far as to accuse us of stating the record "contrary to the fact" shown thereby. But their zeal, which almost approaches the form of venom, cannot change the RECORD. The statement made by us in the former opinion, and which they now challenge as being contrary to the record, is our statement that they had not, in their brief, set out the said verdict which they were claiming was defective, indefinite, uncertain, etc. In view of this contention and of the attitude of counsel, as shown by their brief, filed in support of their petition *Page 317 for rehearing, we shall set forth the record in this case, and consider it in the light of the statute.
It is provided by statute, (§ 596 Burns 1926) and has long been the law, that, "When the jury have agreed upon their verdict, it must be reduced to writing, and signed by the foreman; and when returned into court, the foreman shall deliver the verdict, and either party may poll the jury." In this case, as the verdict which was returned is nowhere challenged because the same was "not signed by the foreman," we are warranted in assuming that the verdict of the jury complied with the above statute.
In the case at bar, the transcript of the record recites: "Come now the jury into open court and return a verdict for the cross-complainant, Ludwig Gorczyca, that he is the owner in fee simple of Lot 28, in Citizens Land Company's West end sub-division to the city of South Bend, St. Joseph County, Indiana." The above, as it conclusively shows upon its face, is not, nor does it purport to be, a copy of the verdict returnedby the jury; it is, and only purports to be, a statement by the person who prepared the entry for the record, of what that person conceived to be the legal effect of said verdict. We cannot accept and be controlled in our determination of the legal effect of a pleading or verdict by what some person, other than a court of competent jurisdiction, says is the legal effect of such instrument. It is the province of a court to declare the legal effect of an instrument, and this it does by the rendition of a judgment. Here we have no "judgment" on the matter in question; we have simply matter of an historical nature prepared by the clerk, supposedly, and by him entered of record along with his "interpretation" of the legal effect of the verdict which the jury returned. The statute requires that the verdict of the jury be signed, that it may be known and identified should occasion demand, just as is required *Page 318 as to instructions and as to special findings, under certain circumstances. An examination of the brief filed by counsel for appellant, on appeal, discloses that, instead of the verdict rendered by the jury upon the trial of this case, they set forth therein what the clerk, or person who prepared the entry for the record, conceived to be the legal effect of said verdict. A search of the record herein fails to disclose any copy of the said verdict; nothing is set forth in the record except the above quoted recitation as to the legal effect of said verdict. If the attorney, or attorneys, who wrote the brief herein on petition for rehearing herein had exerted a small portion of the energy expended upon said brief in seeing that the record in this case, upon which the appeal was prosecuted, was full and complete, he doubtless would have escaped the situation in which he is now found.
The other matters of which complaint is made were given consideration upon the original hearing, and we see no reason to depart from the ruling there made.
The petition for a rehearing is denied.