On Petition for Rehearing.
Reinhard, J.We are asked to grant a rehearing in this case because we made a mistake, as counsel insist, in holding that the error, if any, in refusing the appellant’s request for instructions, was not available, in that the record fails to show that the instructions were signed by the appellant or its counsel. The judge’s certificate contains the statement that the defendant requested certain instructions. This, it is urged by counsel, sufficiently shows that the de*622fendant properly requested-those instructions. In this view we cannot concur. Had the judge certified that the instructions requested were signed by counsel for defendant, the case might be different. The1 safe way, however, is for the counsel’s request for instructions to be transcribed, signature and all, into the bill of exceptions, or record, over the certificate of the judge:
The rule is well established that no presumption will be indulged which would result in convicting the trial court of error, and whenever error is asserted, it devolves upon the party asserting it to show by the record the taking of every step prescribed by the law to subject the court’s ruling to the legal test. The party who complains of a ruling must affirmatively show that he placed himself in an attitude to rightfully ask that which the court refused him, otherwise his complaint will not avail, for the presumption of regularity which attends the proceedings throughout the trial will require the appellate court to assume that the party had not taken the necessary and required steps to entitle him to the ruling. Puett v. Beard, 86 Ind. 104, 107; German Fire Ins. Co. v. Columbia Encaustic Tile Works Co., 15 Ind. App. 623.
We do not doubt the statement of counsel that their request for instructions was duly signed, but we can only take judicial notice of what was done by the statements contained in the record. This may have been a mere clerical omission, but, if so, it is just as fatal an omission as if it had been made in the1 first instance and from the original request for instructions.
It was not essential that appellee’s counsel should have made and discussed this point in their brief. The court will search the record on appeal in order to sustain the trial court, while it will not ordinarily do *623so in order to reverse. But counsel are in error in'stating that the point was not alluded to in the brief of appellee. The copy we have on file calls attention to the omission of the signature, and insists that it was, therefore, not reversible error in the trial court to refuse the instructions requested. In support of their position appellee’s counsel cited Hutchinson v. Lemcke, 107 Ind. 121 (127).
Filed June 18, 1896.Petition overruled.