
    Hoover v. Weesner.
    [No. 17,983.
    Filed Dec. 22, 1896.
    Rehearing denied, April 23, 1897.]
    Appeal and Error. — Assignment of Erroi--Waiver of Error.— Brief. — Where no argument is offered on an assignment of error, but a statement made in a brief requesting the court to pass upon same without argument, “as we have nothing to offer except the statutes,” and no statute is referred to or pointed out, such statement amounts to an express waiver of the error, if any there was in the rulings assigned for error, pp. 511, 512.
    
    
      Evidence. — Will Not Be Considered on Appeal When All of Evidence Is Not in Record.- — The sufficiency of the evidence to sustain the verdict will not be considered on appeal where the bill of exceptions shows upon its face that the evidence is not all in the record, notwithstanding such bill contains the formal statement that “this is all the evidence given in the cause.” p. 512.
    
    Bill op Exceptions. — How Made Part of Record. — The record must affirmatively show that the bill of exceptions was filed in the clerk’s office or in open court, p. 512.
    
    Appeal and Error. — Assignment of Error. — Instructions.—An assignment that the court erred in giving a series of instructions is not available on appeal unless all of the instructions so given were erroneous, pp. 512, 513.
    
    
      Same. — Assignment of Error. — Collateral Motions Must Be Brought into Record by a Bill of Exceptions.- — No question is presented by an assignment that the court erred in overruling appellant’s motion to require appellee to make his abstract of title more specific, where such abstract of title was voluntarily furnished by the appellee and constituted no part of the pleadings, and such ruling was not brought into the record by a bill of exceptions, pp. 513, 514.
    
    
      From the Wabash Circuit Court.
    
      Affirmed,
    
    
      Warren G. Sayre and James D. Conner, Jr., for appellant.
    
      A. H. Plummer and H. C. Pettit, for appellee.
   McCabe, J.

The appellee sued the appellant in a complaint of three paragraphs to recover damages for trespass to real estate in the first paragraph, and to quiet the appellee’s alleged title to said real estate in each of the second and third paragraphs.

The first trial resulted in a verdict and judgment for the defendant. A new trial was granted as of right under the statute, and thereupon the complaint was amended so as to make it consist of the three paragraphs as above indicated. The complaint and issues as they stood on the first trial are not embraced in the transcript.

The issues made upon the complaint, as above indicated, were tried, resulting in a verdict and judgment for the plaintiff, appellee, over defendant’s, appellant’s, motion for a new trial. The appellant has assigned for error the action of the circuit court: (1) in overruling appellant’s motion for a new trial; (2) in overruling appellant’s motion to require appellee to make his abstract of title more specific; (3) in overruling appellant’s motion to tax costs of first trial to appellee; (4) in overruling appellant’s demurrer to each paragraph of the complaint; and (5) in overruling appellant’s motion for a new trial as of right.

Of the third and fifth assignments of error appellant’s counsel in their brief say: “We respectfully ask the court to pass on the third and fifth assignments of error without argument as we have nothing to offer except the statutes.” No statute is referred to or pointed out. Such a brief amounts, to an express waiver of the err or,, if any there was in the rulings assigned for error, according to the established rules of practice in this court.

One of the grounds of the motion for a new trial is that the evidence is not sufficient to support the verdict. There are two reasons why we cannot pass on the sufficiency of the evidence to support the verdict: First, the bill of exceptions shows that the evidence is not all in the record. It is true that the bill concludes in the formal way that “this is all the evidence given in the cause.” But it has frequently been decided by this court that such a statement cannot avail where the bill shows on its face that it does not contain all the evidence as is the case here. Weaver v. Kennedy, 142 Ind. 440, and cases there cited.

That has been so often decided by this court, as precluding a consideration of the sufficiency of the evidence, that a citation of the cases would needlessly encumber this opinion. And, second, the record fails to show that the bill of exceptions was ever filed, either in open court or in the clerk’s office. It has often been held by this court that the record must affirmatively show such filing. Marley v. Noblett, 42 Ind. 85; Bargis v. Farrar, 45 Ind. 41; Board v. Eperson, 50 Ind. 275; Kirby v. Bowland, 69 Ind. 290; Guirl v. Gillett, 124 Ind. 501; Loy v. Loy, 90 Ind. 404; Shulse v. McWilliams, 104 Ind. 512; Robinson v. Dickey, 143 Ind. 214; Miller v. Evansville, etc., R. R. Co., 143 Ind. 570; Pittsburgh, etc., R. W. Co. v. O’Brien, 142 Ind. 218; Armstrong v. Dunn, 143 Ind. 433.

Another ground of the motion for a new trial was the giving of a series of instructions. We would be fully justified in refusing to consider these instructions because the evidence is not in the record. But the statement of these two grounds in the motion for a new trial, is as follows: “5, The court erred in giving instructions Nos. 2, 3, 6, 8,10,13, 14,17,18, 19, 28, and 34, on its own motion; 6, The court erred in giving instructions Nos. 21, 22, 23, 24, 29, 30, 31, 32, and 33 asked by the plaintiff.”

It is not claimed by the appellant’s learned counsel that all of these instructions, or all of either series are erroneous.

We do not find that all of either series are erroneous. It has often been decided by this court that under such a specification in a motion for a new trial all of one series of instructions so joined in the motion must be erroneous or the error assigned thereon is unavailable. Lawrence v. Van Buskirk, 140 Ind. 481; Bement v. May, 135 Ind. 664; Cincinnati, etc., R. R. Co. v. Madden, 134 Ind. 462; Pennsylvania Co. v. Sears, 136 Ind. 460; Cargar v. Fee, 140 Ind. 572; Indiana, etc., R. R. Co. v. Snyder, 140 Ind. 647.

The second assignment of error does not present the question as to whether the court erred in overruling: the appellant’s motion to require the appellee to make his abstract of title more specific.

The statute provides that upon motion the court may in all proper eases “order * * * abstracts of title to be furnished.” Section 366, Burns’ R. S. 1894 (363, R. S. 1881).

The abstract in this case was voluntarily furnished by the appellee without being required to do so.

It constituted no part of his complaint. Such abstract was not part of the record. Roberts v. Vornholt, 126 Ind. 511.

There is no bill of exceptions bringing into the record the abstract of title and motion to make it more specific. It is only when a motion rests upon matters apparent upon the face of the record proper that it may be presented without a bill of exceptions. Where such motion depends upon and relates to collateral matters not appearing upon the face of the record, then such motion and the ruling thereon must be brought into the record by a bill of exceptions. Chandler v. State, 141 Ind. 106, and cases there cited.

But there was no error in overruling the motion if it were in the record, because the abstract was, as required by the rule stated in Roberts v. Vornholt, supra. “A condensed history of the title to the land, consisting of a synopsis, or summary, of the material, or operative portion of all of the conveyances of whatever kind or nature which in any manner affect the land.” The only defect in the several paragraphs of the complaint, pointed out in appellant’s brief, is the alleged insufficiency of the abstract of title furnished. That document, we have seen, formed no part of the complaint and, therefore, its supposed insufficiency would not render either paragraph of the complaint insufficient even if the abstract were defective as supposed.

Finding no available error in the record, the judgment is affirmed.

On Petition for. Rehearing.

McCabe, J.

Two points made by appellant for a rehearing deserve some special mention, namely, that we erred: (1) in holding that the evidence does not all appear to be contained in what purports to be the bill of exceptions; and (2) that the record does not show that the bill of exceptions was ever- filed. As to the first point, what purports, to be the bill of exceptions shows that a lot of record and documentary evidence was offered, to the introduction of which the appellant objected and his objection was overruled, to which there was exception. The evidence is not set out. But counsel for appellant come forward now and say such evidence was never in fact introduced and file affidavits of the .stenographer and one of appellant’s counsel stating that such documentary evidence was not in fact ever introduced. They also claim that such documentary evidence is in the bill of exceptions in proof of which they cite the place in the longhand manuscript where the objection was overruled following which is this statement: “See exhibit A, page 307.” Turning to that page, is what purports to be a complete record of a partition suit without any statement whether it was introduced in evidence or not. There is nothing to identify this as a record of any court or to show that it was or was not read in evidence. There is no attempt by appellant’s counsel to explain how it got into the bill of exceptions, if in fact it, as they swear, never was introduced in evidence. So that, upon the whole, we are left in some doubt whether the matter was read in evidence or not, and if it was, there is nothing to identify it with that which was offered.

But if the document purporting to be the bill of exceptions is not in the record, then not only that part of the evidence is out of the record but no part of the evidence is in the record. Counsel for appellant claim that a certain indorsement on the back of the last leaf of the supposed bill of exceptions proves that it was filed in the clerk’s office, to-wit: “Filed August 13, 1895. Levi Patterson, clerk.” That is a different name from that signed to the certificate as clerk authenticating the transcript.

It has long been settled that the filing of the bill of exceptions in the clerk’s office must be made to appear from the record independent of the bill itself. Guirl v. Gillett, 124 Ind. 501-503; Fulkerson v. Armstrong, 39 Ind. 472; Schoonover v. Reed, 65 Ind. 313; Hormann v. Hartmetz, 128 Ind. 353-358; Beatty v. Miller, 146 Ind. 231; Pratt v. Allen, 95 Ind. 404; Loy v. Loy, 90 Ind. 404; Guenther v. State, 141 Ind. 593-594; Stewart v. State, 113 Ind. 505; Henderson v. McAllister, 141 Ind. 436; Ueker, Admx., v. Bedford Blue Stone Co., 142 Ind. 678, and cases there cited. Robinson v. Dickey, 143 Ind. 205, 52 Am. St. 417, and cases there cited.

Therefore, even if we are required to consider the supposed file marks of the supposed clerk on the supposed bill of exceptions as a part of the bill without authentication by the clerk’s seal, a thing we need not and do not decide, still that would be looking to the bill of exceptions to prove that it is a part of the record instead of looking to the record ,for such proof. In other words, that is assuming the existence of the very fact which needs proof, and then proving the'fact by the fact thus assumed. That leaves the fact without any proof except assumption. That is not the way records are established in courts of justice. But it is insisted that the clerk’s certificate to the transcript shows that the bill of exceptions was filed in the clerk’s office in the following words: “That said original longhand manuscript was afterwards filed with the clerk of said'court on the 13th day of August, 1895, after the same had been signed and sealed as a bill of exceptions.” If this be held to show that anything had been filed but the longhand manuscript, then it proves too much. If it proves that the bill of exceptions had been filed then it proves that the longhánd manuscript had not been filed until after it had been incorporated in the bill of exceptions. It is thoroughly settled now that unless such longhand manuscript of the evidence is filed in the clerk’s office before its incorporation in the bill of exceptions, such evidence forms no part of the record in this court when the original is sent up as is the case here. Mason v. Brady, 135 Ind. 582; DeHart v. Board, etc., 143 Ind. 363.

This is just as fatal to the appeal as if the bill of exceptions was not filed. Besides it was distinctly held by this court in Beaty v. Miller, supra, that there must be an entry or recital in the transcript at the proper place, showing the filing of the bill of exceptions, or at least a certificate by the clerk to that effect, and that “it is firmly settled by the decisions of this court that the transcript of the proceedings which comes to this court must affirmatively show, independent of the bill, that the latter was filed in the office of the clerk.”

We would have been justified in refusing to pass on these points at all as they are made for the first time on petition for rehearing. There is nothing said in support of the other points for rehearing calling for special notice.

The petition for rehearing is overruled.  