ON PETITION FOR REHEARING. Appellant insists we erred in holding that the evidence given on the voir dire examination of the jurors was not set out in his brief. Appellant, in *Page 127 the preparation of his brief, pursuant to Rule 22, stated: (1) the nature of the action; (2) the issues; (3) how the issues were decided and the judgment; (4) errors relied upon for reversal; and (5) the part of the record wherein he is presumed to state so much of the record as fully presents every error and exception relied on, referring to the pages and lines of the transcript. In the statement of the record, pages 71, 72 and 73 of his brief, appellant states that the bill of exceptions containing the examination of the jurors on their voir dire was filed, and that the record of the filing, and the bill are in the record at pages 59 to 132. Under the subhead, "Examination of Jurors," is the name "Ella McBride, R. p. 75. L. to L. 1. R.P. 77, L. 24." A like statement is made as to eight other persons, with a statement that his challenge for cause to each of these persons as jurors was overruled and an exception saved. All of the instructions given and refused are then set out. This is followed by a recital of the evidence given on the trial. Then follows the several errors relied on, with points and authorities to support them.
Points 7 and 8 relate to the overruling of appellant's challenge to two prospective jurors, with a statement of "part" of the examinations of each, with a statement of the 6-8. judge as to why the sheriff was directed in advance of the trial to have a number of prospective jurors on hand in anticipation of challenges when the case was called for trial. Without so deciding, it may be conceded that the correctness of such rulings is presented by appellant's brief and that the court erred in overruling appellant's challenge to each of these two jurors. But it does not follow that the question is presented by the record. It is well settled that this court may search the record to affirm, and we know of no reason why we may not search the record to sustain the action of the court in affirming the judgment when the *Page 128 appellant has filed a petition for a rehearing. Appellee, by the Attorney-General, in its brief in opposition to a rehearing, calls attention to the fact that the clerk, at the direction of appellant, incorporated in the transcript the original bill of exceptions containing the voir dire examination of the jurors, instead of a copy of such bill, and insists that the testimony of the several jurors and the proceedings relating to the empaneling of the jury are not in the record. We have given this question careful consideration, and, on authority of Mitchell, Exr., v.Beissenherz (1922), 192 Ind. 587, 135 N.E. 885, we hold that the evidence and proceedings relating to the empaneling of the jury are not in the record, and that the correctness of the court's action in overruling appellant's challenge to the jurors is not presented by the record. Appellant, however, contends that appellee, by failing to point out and call attention to the condition of the record, in its original brief on the merits, waived such defect in the record and that it cannot, on rehearing, rely on such defect. Raley v. Evansville Gas, etc.,Co. (1910), 45 Ind. App. 649, 90 N.E. 783, is cited in support of this contention. In that case, the judgment was reversed, and, in support of its petition on rehearing, the appellee insisted that the court could not properly consider and decide any question raised by appellant's assignment of error because of a failure to comply with the rules of the court relating to the preparation of his brief. In that case, the appellee, after a reversal, was insisting that a rehearing should be granted and the judgment affirmed because of a defective brief. In that case, the appellee, having filed a brief on the merits and having made no objection to the form of the appellant's briefs, it was held the defects had been waived and could not be raised for the first time on rehearing. In the instant case, the judgment has been affirmed and the appellant is asking for a rehearing. This court, with or without a suggestion *Page 129 by appellee, has a right to search a record in order to affirm, and, having affirmed the judgment, we have the right to search the record to sustain such action.
Rehearing denied.