On Petition eor a Rehearing.
Woods, J.Counsel for the appellant complain very earnestly, if. not bitterly, that this appeal has been decided on grounds not discussed or even suggested in the briefs. They say: “Without one word of warning, and without the points now ruled by this court having been noticed, referred or alluded to by counsel, either by the assignment of errors or his able and lengthy brief, the court goes into the record and passes upon two or three positions, unknown and unthought of by the judge below, or either of the counsel engaged in *210this case, and decides the rights of the parties on points never raised nor. discussed. This is a practice, we will he pardoned for saying, that has been heretofore entirely unknown to us.”
The counsel have greatly mistaken both the practice and the duty of this court. The issue tendered for our decision by the appellant in every case of appeal is, that “there is 'manifest error in the record,” in some specified particular or particulars. The appellee joins issue and says there is no error. The trial is by the record, not by the argument of counsel, and the appellant has no right to prevail, and we should be derelict in duty if we permittted him to prevail, unless the error is made manifest.
No matter what error the court below may have committed, it is not manifest in the record, unless saved in the lower court and presented in this court, in accordance with the rules of practice. These rules of practice are the law of the land, their reasonableness is justified by experience, and, unless ready to abrogate, we have no right to disregard, them. We never go beyond the brief of the appellant to search the record in quest of errors which have not been pointed out in the brief; but the appellee, without filing any brief at all, is entitled to the benefit of everything in the record whiqh may prevent a reversal of the judgment upon the errors assigned ; and, because the counsel on both sides may discuss some question with very great learning and ability, as was ■done in this case, we are not therefore permitted to shut our ■eyes against the fact, which we can not otherwise help seeing, that the question is not in the l'ecord. The silence of the appellee on any point is not equal to an agreement to waive the point; the burden is on the appellant to show the error which he has assigned. Powell Appel. Proceed. 125-8.
If there are points in a record which counsel do not suggest, and we do not perceive them, there are numerous decisions that we will not consider such points on a petition. *211for a rehearing, but there is no rule which permits us to ig.nore what we do see. We read the briefs of counsel, but, as the appeal is tried by the record, we examine that too. See Heizer v. Kelly, 73 Ind. 582.
Effort is made to question some points of the decision made, but we do not perceive that, if a rehearing were granted, we could reach a different conclusion.
Petition overruled, with costs.