Irwin v. Smith

On. Petition for a Rehearing.

Elliott, J.

— In the opinion of the court, delivered by Sgott, J., it was said that the motion for a new trial did not present any question upon the instructions. The language of the opinion upon this point is as follows: “The fifth cause for a new trial, together with the various subdi-. visions, presents no question for this court, nor did it present any question to the court below, either at special or general term.” The cause for a new trial, to which reference is made in the preceding quotation, was in appellees’ motion thus stated: “5. For errors of law occurring at the trial, in this, to wit: The court erred in giving the jury the instructions given by the court on its own motion, which instructions were at the time excepted to by the defendants ; The court erred in modifying and changing certain instructions asked by the defendants, to which modification and changes of said instructions the defendant at the time excepted, as is shown by bill of exceptions; the court erred in refusing to *488give instructions asked by defendants, the refusal to give which said instructions was excepted to by the defendants at. the time. The court erred in giving contradictory instructions to the jury.” Each of these subdivisions is appropriately numbered. We think the doctrine declared in that part of the.opinion which we have quoted is in conflict with many cases, and is erroneous.

A motion for a new trial is sufficiently specific, if it clearly directs the court's attention to the points upon which the party claims erroneous rulings were made, and indicates, with reasonable certainty, the particular ruling of which complaint is made. In the cases cited below, it was expressly held, overruling some earlier cases, that it was sufficient to assign, as a cause for a new trial, that the court erred in giving and refusing instructions, without specifically naming the particular instructions. Bartholomew v. Langsdale, 85 Ind. 278; Dawson v. Coffman, 28 Ind. 220; Waggoner v. Liston, 37 Ind. 357. These cases have since been followed, and we think they express the correct rule.

While we are clear that the opinion must be modified in the particular, indicated, we do not think the petition for a rehearing ought to be granted. The granting of the petition would avail nothing, for, in our opinion, the instructions are not a part of the record. They are not incorporated into the record in the manner required by law. The statute provides, that “It shall not be necessary to copy a written instrument or any documentary evidence into a bill of exceptions ; but it shall be sufficient to refer to such evidence, if its appropriate place be designated by the words, ‘here insert.’ ” It has often been held that instruments are not to be deemed part of the record unless incorporated into the bill of exceptions, either by copying at length in the body of the bill, or by adopting the course pointed out by the statute. Kesler v. Myers, 41 Ind. 543; Sidener v. Davis, 69 Ind. 336; The Aurora, etc., Co. v. Johnson, 46 Ind. 315; *489The State, ex rel., v. The Peru, etc., R. R. Co., 44 Ind. 350; Burdick v. Hunt, 43 Ind. 381; Harman v. The Stale, 22 Ind. 331.

We could not, without overthrowing many cases and disturbing a long settled rule of practice, hold that instructions may be brought into the record, which are neither copied in the body of the bill nor appropriately designated, nor the proper place for their insertion indicated, by the words “here insert,” by being merely attached to the bill of exceptions.

The law as it stood prior to the adoption of the code required that the instrument should be copied into the body of the bill. This doctrine was declared as early as Huff v. Gilbert, 4 Blackf. 19. In Spears v. Clark, 6 Blackf. 167, the bill contained the words, ‘ ‘insert said note and said endorsements, ’ ’ and it was held not to be sufficient. In The Board, etc., v. Embree, 7 Blackf. 461, it was held that a judge ought not to sign a bill which contains a provision for the insertion of papers, but that they should be copied into the bill. In Doe v. Makepeace, 8 Blackf. 575, two of the above named cases were referred to as being correctly decided. In Mills v. Simmonds, 10 Ind. 464, it is held that, under the practice prevailing prior to the adoption of the code-, the instruments could only be made part of the record by being copied into the bill. The code provides a more liberal rule, but it does not relax the old rule any farther than to allow instruments to be copied into the record by the clerk in cases where they, are properly referred to, and the proper place for their insertion designated by the words “here insert.”

The right to have instruments embodied in the bill without being actually copied therein, before- the bill is signed, depends entirely upon this statutory provision. If it were not for this provision, they could be brought into the record ( when the attempt to get them into the record is by way of a bill of exceptions) only by being copied at full length into the bill before the signature of the judge was affixed. The *490statute expressly provides the method in which instruments, may be carried into the record without being actually copied, and we have no authority to declai’e that it may be done in any other. There is no room for construction, for the language of the statute is plain. The instrument must either be copied, or it must be designated, and the place for its insertion indicated by the words “here insert.”

There are, at least, two substantial reasons for such a rule as that declared by statute. The first is, that it assures a correct record, prevents the mere entries of the clerk from forming an essential part of the record, and accurately exhibits the rulings of the court and the grounds upon which such rulings were based. If attorneys were left free to choose a method for themselves in each particular case, there would be no general rule by which the accuracy of the transcript filed in this court could be tested. The second reason is, that such a rule secures uniformity of practice, prevents confusion, and places each instrument in its apjn'opriate place, and prevents instruments and documents from appearing as exhibits in awkward and out-of-the-way places. Unless there is some uniform, fixed general rule "upon this subject, great confusion would arise, and courts would be perplexed by questions in each particular case, as to whether instructions or other written instruments were in the record.

A general, uniform rule, applying not to some but to all cases, will relieve from embarrassment, simplify the procedure, lighten the labor of court and counsel, and secure attention to.the real merits of the controversy.

There is no hardship in requiring strict compliance with the provisions of the code, for, if it is not desirable to copy the instructions into the body of the bill, all that need be done is to appropriately designate the instructions, and at the proper place write the words, “here insert.” A simpler method, and one imposing less labor upon the attorney, could not well be devised. Simple as it is, we are fully sat*491isfied, upon careful deliberation, that it is tbe only, one which will secure accurate, methodical, concise and orderly records.

We are now, of course, speaking only of cases where instructions are attempted to be brought into the record by means of a bill of exceptions, and nothing herein said is intended to apply to any of the other methods of making instructions a part of the record.

Petition overruled.