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modified shall be written out at full length and shall be given as one of the instructions given by the court of its own motion, and the instruction as requested shall be refused. All instructions requested, whether given or refused, and all instructions given by the court of its own motion, shall be filed with the clerk of the court at the close of the instruction of the jury. Exceptions to the giving or refusing of instructions may be taken at any time during the term, and the same may be taken orally and entered upon the record or minutes of the court, or in writing at the close of the instructions requested, or given by the court of its own motion, in which case the party excepting or his counsel shall enter at the close of such instructions a memorandum, which shall be dated and signed, setting forth in substance that such party excepts to the giving or to the refusing, as the case may be, of each of the above instructions, designated by its number. All instructions requested as herein provided, whether given or refused, and all instructions given by the court of its own motion, together with all exceptions taken to the giving or refusing of instructions as herein prescribed, and all entries upon the minutes or records of the court in respect to such instructions and exceptions, shall be a part of the record without any bill of exceptions and as such may be included in the transcript on appeal: Provided, That if the parties consent thereto, the court may instruct the jury orally, in which case the instructions so given shall be taken in shorthand by the court reporter and by him written out in longhand, and the same shall be numbered consecutively and signed by the judge and filed with the clerk at least one full day before the close of the term, and when so filed such instructions shall be deemed to have been given in writing and exceptions thereto may be taken in either of the modes hereinabove prescribed.

See sections 641b to 641i for sections 2 to 9 of this act.

See notes to section 544, Burns' R. S. 1901.

550. Further instructions to jury.

It is improper for the court, in the absence of and without notice to the parties, to recall a jury during their deliberations and lecture them for their failure to agree upon a verdict. Cox v. Peltier, 159 Ind. 355.

553. Verdict, writing, signing, return.

It is improper for the court, in the absence of the parties and without notice to them, to receive a verdict and discharge the jury. Cox v. Peltier, 159 Ind. 355.

555. Verdict-Interrogatories.

The time when a request shall be made to submit interrogatories to a jury is within the discretion of the trial court, and the action of such court will be disturbed only when such discretion is abused. Fidelity Assn. v. McDaniel, 25 App. 608.

It is not proper to require a jury, by an answer to an interrogatory, to state on which paragraph of a complaint the verdict is based. Clear Creek Co. v. Dearmin, 160 Ind. 162; Farmers Ins. Assn. v. Reavis, 163 Ind. 321; Salem-Bedford Co. v. Hilt, 26 App. 543.

Interrogatories submitted to a jury must call for the finding of facts provable under the issues. Salem-Bedford Co. v. Hilt, 26 App. 543.

It is not error for the court to refuse to permit counsel to read to the jury interogatories that the court intends to submit to the jury, and to comment on such interrogatories in argument. Chestnut v. Southern Ry. Co., 157 Ind. 509.

It will be presumed on appeal that interrogatories to a jury, and answers thereto, which appear in the record and which were acted on by the trial court and parties, were properly submitted to the jury. Life Assurance Co. v. Haughton, 31 App. 626.

A finding in an answer to an interrogatory that a person purchased a note in the usual course of business, is the statement of a conclusion, and not the finding of a fact. Winters v. Coons, 162 Ind. 26.

It is the duty of a jury to return definite answers to interrogatories when there is any evidence bearing upon the questions, or to report an inability to agree upon answers. Life Assurance Co. v. Haughton, 31 App. 626.

If a jury fails to properly answer interrogatories, it is the duty of the court, on request, to direct the jury to retire and return answers to the interrogatories. Life Assurance Co. v. Haughton, 31 App. 626.

556.

Special findings controlling general verdict.

Every reasonable presumption is indulged in favor of a general verdict, and nothing is inferred or presumed in aid of special findings of fact made in answer to interrogatories. Morford v. Chicago Ry. Co., 158 Ind. 494.

A general verdict is controlled by special findings of facts only when the two can not be reconciled by any evidence admissible under the issues. Clear Creek Stone Co. v. Dearmin, 160 Ind. 162; Wabash R. R. Co. v. Schultz, 30 App. 495.

If the facts found in answers to interrogatories are inconsistent, and in irreconcilable conflict with the general verdict, then the special findings will control, and judgment should be entered thereon. Morford v. Chicago Ry. Co., 158 Ind. 494.

If, in an action to recover damages for personal injuries, the special finding of facts show that the injured person was guilty of negligence contributing to the injury, the plaintiff can not recover. Morford v. Chicago Ry. Co., 158 Ind. 494.

558. Verdict in replevin.

The plaintiff, in an action of replevin, can not complain of the failure of the jury to find the value of the goods when the verdict is in favor of the defendant. Cabell v. McKinney, 31 App. 548.

ARTICLE 20.-TRIAL BY COURT.

SEC.

560. Special finding by court.

560. Special finding by court.

The adoption or approval of a finding of facts made by a master commissioner appointed by the court will not be treated as a special finding by the court when there is no request made for a special finding. Terre Haute R. R. Co. v. State, 159 Ind. 438. The court may make a special finding of facts and state conclusions of law thereon on the trial of exceptions to the report of an administrator. Taylor v. McGrew, 29

App. 324.

If a special finding of facts is made without request it will be treated as a general finding. Bass v. Citizens Trust Co., 32 App. 583.

Exceptions to conclusions of law on special findings of fact must be entered of record at the close of the decision, and can not be shown by a bill of exceptions. Cooney v. American Ins. Co., 161 Ind. 193.

If an exception to several conclusions of law is joint as to all the conclusions, all such conclusions must be erroneous in order to render the exception available. Rader v. Sheets, 26 App. 479.

If a judgment is in accordance with the conclusions of law stated on a special finding of facts, a motion to modify the judgment can not prevail. Kepler v. Wright, 31 App. 512.

ARTICLE 23.-NEW TRIAL.

SEC.

568. Causes for new trial.

570. Motion for new trial, when made.

SEC.

572. Causes for new trial discovered after term.

568. Causes for new trial.

The term "decision," as used in the statute relating to new trials, embraces a general or special finding when a cause is tried by the court, and the words decision and finding are synonymous. Wolverton v. Wolverton, 163 Ind. 26.

A motion for a new trial, assigning as cause that the finding and judgment of the court is contrary to the evidence, and is also contrary to law, presents no question. Lynch v. Milwaukee Co., 159 Ind. 675; Fenner v. Simon, 26 App. 628; Felt v. East Chicago Co., 27 App. 494; Baltimore R. R. Co. v. Daegling, 30 App. 180.

If a motion for a new trial, which might be overruled for want of form, is sustained, the want of form of such motion can not be urged on appeal. Balph v. Magaw, 33 App. 399.

Rulings upon motions to tax costs are not causes for a new trial. Duckwall v. Jones, 156 Ind. 682.

Rulings upon motions to modify judgments are not causes for a new trial. Duckwall v. Jones, 156 Ind. 682.

Misconduct of a juror will not be a cause for a new trial when such misconduct was known to the complaining party before verdict, and no objection was made until after verdict. Ellis v. City of Hammond, 157 Ind. 267.

In order that surprise at the testimony of a witness shall be cause for a new trial, a motion should be made for a continuance, or that the submission be set aside, and the cause withdrawn from the jury. Ellis v. City of Hammond, 157 Ind. 267.

Excessive damages constitutes a cause for a new trial in actions ex delicto only. Bluffton Co. v. Richardson, 25 App. 263; Stabno v. Leeds, 27 App. 289.

A new trial should not be granted on account of newly-discovered evidence wher such evidence bears only on the question of damages. Ellis v. City of Hammond, 15. Ind. 267.

All rulings of the court made during the trial of a cause constitute causes for a new trial, and can not be assigned as independent errors on appeal. Tilden v. Whitely Co., 27 App. 53.

All rulings relating to evidence must be assigned as a cause for a new trial in order to be available on appeal. Nordyke Co. v. Keokuk Co., 26 App. 548.

Motions for new trials on the ground of the admission or exclusion of evidence must indicate with reasonable certainty the evidence admitted or excluded. Felt v. East Chicago Co., 27 App. 494.

570.

Motion for new trial, when made.

Motions for new trials must be filed during the term at which the verdict or decision is rendered, unless such verdict or decision is rendered on the last day of the term. Van Hook v. Estate of Young, 29 App. 471.

If a final judgment for partition is not rendered on the last day of a term of court, a motion for a new trial can not be filed at the next term. Van Buskirk v. Stover, 162 Ind. 448.

If a motion for a new trial is filed after the time allowed by statute, and in the absence of the adverse party, the failure of such party to object to such filing will not amount to a waiver of any of his rights. Dugdale v. Doney, 30 App. 240.

572. Causes for new trial discovered after term.

In applications for new trials because of new evidence discovered after the term of the trial, the facts set forth must show that due diligence was used to discover such evidence before the former trial. Zimmerman v. Weigel, 158 Ind. 370.

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577.

Judgment against part, determining rights.

The rendition of a judgment against one debtor on a joint and several obligation does not merge such obligation so as to prevent a subsequent judgment against other debtors. Corneille v. Pfeiffer, 26 App. 62.

Section 577 of the civil code recognizes the right of parties to file cross-complaints, and of the power of courts to settle all controversies that may arise between the parties to an action. Todd v. Oglebay, 158 Ind. 595.

585. Judgment without relief, appraisement.

Judgments can only be entered without relief of appraisement laws when the law so provides, and if a judgment should be without relief of appraisement laws, but is not so entered, a sale thereunder without appraisement is illegal. Bollman v. Gemmill, 155 Ind. 33.

590. Payment, entry of satisfaction.

The entry of satisfaction of a judgment on the proper record is a public record within the meaning of the statute making it a crime to alter a public record. State v. Henning, 158 Ind. 196.

601.

Costs, actions for damages solely.

In actions for damages solely, which do not arise out of contract, if the plaintiff recovers less than $5 he can not recover more costs than damages except in the cases mentioned in the statute. Schaeffer v. Rominger, 27 App. 409.

602. Relators, liability for costs.

The legislature has power to provide that relators in a certain class of actions shall not be liable for costs. Latshaw v. State, 156 Ind. 194.

612. Assignment of judgment.

The assignment of a judgment does not affect the lien of an attorney duly entered thereon. Peterson v. Struby, 25 App. 19.

617. Liens of judgments on land.

A provision in a decree of divorce that the father of minor children shall be charged with the support and education of such children, no sums being specified, does not make such charges a lien on the land of such father. Matthews v. Wilson, 31 App. 90.

If a judgment debtor dies, and the judgment creditors are not prevented from enforcing their judgments by injunction, appeal, or agreement of parties, such judgments will cease to be a lien on lands in eleven years from the date of their rendition. Taylor v. McGrew, 29 App. 324.

Rights of parties as to the lien of a judgment where parts of the judgment is assigned to different persons and a portion of the judgment is retained by the judgment plaintiff. Alden v. White, 32 App. 671.

627. Review of judgment.

In a proceeding to review a judgment taken against several persons, all of such persons are necessary parties to the proceeding. Tereba v. Standard Cabinet Co., 32 App. 9.

A complaint to review a judgment must contain in the body thereof, without reference to exhibits filed, enough of the proceedings to set before the court a complete statement of the case. Murphy v. Branaman, 156 Ind. 77.

A complaint to review a judgment on account of newly discovered matter must show that due diligence was made to discover such matter. Tereba v. Standard Cabinet Co., 32 App. 9.

628. Review, cause for, limitation.

In proceedings to review judgments on account of errors of law the cause must be heard on the record alone. State Building Ass'n v. Brackin, 27 App. 677.

On the hearing of a proceeding to review a judgment on account of errors of law the trial court sits as an appellate court, and only such errors can be considered as might have been considered on appeal. State Building Ass'n v. Brackin, 27 App. 677.

If a judgment is rendered without jurisdiction over the person, an action to review the same will lie without there having been an exception saved in the trial court. Bartmess v. Holliday, 27 App. 544.

630. Review, stay of proceedings.

Proceedings to review judgments do not operate as a stay of the judgment unless a bond is given, as provided by statute. State v. King, 30 App. 389.

633. Death of judgment debtor, heirs, liens.

If a judgment debtor dies, and the judgment plaintiff is not prevented from enforc ing the judgment by injunction, appeal, or agreement of the parties, such judgment will cease to be a lien on the land of the debtor after eleven years from the date of rendition of the judgment. Taylor v. McGrew, 29 App. 324.

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