Stephenson v. Elliott

Davis, J.

This cause is here for the second time. Stephenson v. Elliott, 2 Ind. App. 233. A trial by jury, after former reversal, resulted in judgment against appellant. Two questions are discussed by counsel for appellant on this appeal.

1. That the court erred in giving instruction No. 2, asked by appellee.

2. That the verdict is contrary to the evidence.

Appellee insists that the instructions are not properly in the record. An effort has been made to bring the instructions into the record under the provisions of section 544, R. S. 1894 (section-535, R. S. 1881). There is nothing in the record showing that the instructions, were ever filed. See subdivision 6 of section 542, R. S. 1894 (section 533, R. S. 1881). In the language of O’Donald v. Constant, 82 Ind. 212: “The transcript contains no copy of the clerk’s notation of the filing, nor any recital that they were filed.” Under the statute and the decisions in this State, the instructions can not be considered as being in the record. Louisville, etc., R. W. Co. v. Wright, 115 Ind. 378 (393); Beem v. Lockhart, 1 Ind. App. 202; Killion v. Hulen, 8 Ind. App. 494.

Filed Feb. 23, 1895.

The evidence is conflicting. There is, it is true, ample evidence in the record tending to sustain appellant’s theory of the case. On the’ contrary, there is evidence on appellee’s theory of the case tending to prove that appellant was not entitled to recover anything against Mm.

There is no reversible error in the record.

Judgment affirmed.