Indianapolis & Western Railway Co. v. Branson

*391On Petition for Rehearing.

Jordan, J.

6. Appellees petition for a rehearing, on the ground that the instructions in this case are not properly in the record, and therefore the court should not have considered instructions two and three refused by the trial court, for which refusal the judgment was reversed. Counsel for appellees do not claim that these two charges, as requested by appellant and refused by the lower court, were not correct, nor do they, in their brief upon the petition for a rehearing, advance any reason to show that appellant was not entitled to have the instructions in question given to the jury, but their sole contention is that the record does not disclose that the instructions refused were ever filed with the clerk of the lower court. The point in regard to their filing was in no manner raised by appellees’ counsel in their original brief filed on April 11, 1908. The only adverse criticism made in this brief against the instructions asked by appellant and refused by the court was that appellant’s brief did not disclose that they were signed by its counsel. The rule is well settled that a point not presented for decision by a party upon appeal in his original brief will not be considered by this court in determining whether a petition for rehearing should be granted. Such a petition can be based only on points that were properly presented for decision at the original hearing. Ewbank’s Manual, §242, and authorities cited; Elliott, App. Proe., §§556, 557; Eules 22 and 23 of this court.

It is true, as appellees claim, that in a document indorsed “Additional Points and Authorities,” filed on September 5, 1908, under the authority of rule twenty-one of this court, a statement is made that the instructions given and those refused were not filed with the clerk. Said rule twenty-one after providing for the filing of original briefs by an appellant and appellee and the reply brief on the part of appellant, then expressly declares that “no supplemental or ad*392ditional briefs by either party will be received. Further citation of authorities in support of any proposition stated in the briefs may be filed by either party at any time without comment or argument.” Under this latter provision appellees could not for the first time raise the question that the instructions in controversy were not properly in the record. Consumers Paper Co. v. Eyer (1903), 160 Ind. 424, 427; Malott v. State, ex rel. (1902), 158 Ind. 678; Gates v. Baltimore, etc., R. Co. (1900), 154 Ind. 338; Underwood v. Sample (1880), 70 Ind. 446.

In the case last cited appellee based his petition for a rehearing upon the ground that the bill of exceptions upon its face disclosed that all of the evidence was not in the record. In considering the petition for a rehearing this court said: ‘ ‘ The objection thus urged to the bill of exceptions was not made, or in any manner referred to, by the appellee in his original brief, and is for the first time now presented by his petition for a rehearing. By the well-established practice of this court, the objection comes too late. We cannot now be called upon to reopen the cause for the purpose of inquiring whether there may not have been some defect in the record, of which the appellee might have availed himself, when he filed his original brief, but did not. The appellee is as much bound to present, in the first instance, all the questions relied upon by him, as is the appellant, and his failure to do so operates in the same way, against him, upon his application for a rehearing. ’ ’

7. Counsel for appellees apparently assume that it was the duty of this court, on its own motion, to search the record in this appeal in order to discover whether instructions in the case were properly in the record. But appellee Branson, in her original brief, treated the instructions in question .as being properly before us for consideration, hence we were not required to search the record in order to discover the contrary. While it is true that upon points apparent upon the record in a case appealed to this *393court, which will prevent a reversal of the judgment of the trial court, we may, in the exercise of our discretion, give an appellee the benefit thereof, although he has omitted in any manner to refer to or present such points in his brief, nevertheless the searching of the record by this court on its own motion, in order to ascertain if there is some point in the case or defect in the record which will obviate a reversal of the judgment, is a matter wholly optional with the court, and can neither be demanded nor relied upon by an appellee who has neglected to present the point in his original brief.

8. Conceding, without deciding, that the instructions in question are not properly in the record, nevertheless to grant appellees a rehearing would not better their present condition, for it appears that the point upon which the judgment was reversed was not alone presented by appellant under instruction two, as refused, but also by objections made by it to the introduction of certain evidence by appellees. Consequently, upon another hearing, a reversal would necessarily follow, because of the error of the lower court in admitting the evidence in question.

Petition for rehearing overruled.