Kern v. Ravencroft

Henley, C. J.

The appellant was the owner of a brick building in the city of South Bend, Indiana, the second story of which was arranged in suites of rooms and was rented by her to families. At the rear of this building was a stairway for the general use of her tenants and which led down into the back yard to a path leading to a privy vault. The appellee was a visitor of one of the tenants in appellant’s said property. She went out upon said stairway, when the same, on account of its defective condition, fell and caused the injuries for which this action was brought. It is averred in the complaint that it was the duty of the appellant to maintain such a stairway, and that she failed in that respect, and that she had knowledge of its defective condition.

There are two specifications of the assignment of error; (1) that the complaint is insufficient; (2) that the court erred in overruling appellant’s motion for a new trial. The first specification is not discussed, and, under the well settled rule, any question raised by it has been waived. Under the second specification, counsel for appellant have filed a very able argument upon the leading question growing out of the giving of. certain instructions to the jury on the trial of the cause; but we are met by the objection brought to our attention by counsel for appellee that the bill of exceptions which purports to bring the instructions given by the lower court to the jury is not properly in the record for the reason that it nowhere appears that such bill was filed with the clerk after it was signed by the judge. Such filing is absolutely necessary and it must be shown by an entry affirmatively showing such fact, or a certificate of the clerk to that effect. In this case neither has been done. The file marks of the clerk upon the record are not sufficient to show that fact in a court of appeal. This question was passed upon and the authorities collected in the case of McCormick, etc., Co. v. Smith, 21 Ind. App. 617. See, also, Mills v. Byram, 16 Ind. App. 698; Gifford v. Hess, 15 Ind. App. 450; Peerless Stone Co. v. Wray, 143 Ind. 574. It thus appears that the questions sought to be raised by appellant are not presented by the record.

The judgment is affirmed.