evidence strongly preponderates in favor of the defendant below. If it was permitted this court, as it was the duty of the trial court on the motion for a new trial, to weigh the testimony, and determine whether or not there was sufficient evidence to support the general verdict and special finding, we would unhesitatingly say, as the evidence appears in the record, the verdict is manifestly against the weight of the evidence. Under well-settled rules, we are, however, only permitted to ascertain whether there was evidence fairly tending to sustain the verdict; and as there is some evidence which, if believed, tends to support the conclusions reached by the jury, we cannot, under the rule, disturb their finding. The judgment is accordingly affirmed, with costs.

(104 Ind. 368)

JOHNSON v. STEPHENSON and others.

Filed December 31, 1885.

1. APPEALS-MUST BE PERFECTED WITHIN ONE YEAR.

Appeals to the supreme court, whether taken in term time or not, must, in ordinary civil actions, be perfected by the filing of the transcript within one year from the time of rendering judgment.

2. SAME-RULE 23 OF THE SUPREME COURT.

Rule 23 of the supreme court, providing that, where an appeal is taken after term, the transcript must be filed within 60 days after service of the notice, is reasonable and valid.

Appeal from Owen circuit court.

J. C. Robinson, I. H. Fowler, A. W. Fullerton, S. O. Pickens and W. A. Pickens, for appellant.

Beem & Hickam, for appellees.

ZOLLARS, J. Judgment was rendered in the court below on the third day of April, 1884. On the twenty-seventh day of March, 1885, appellant served notices of an appeal upon appellees and the clerk of the circuit court. The transcript was filed in the office of the clerk of this court on the thirtieth day of April, 1885. It will thus be seen that the notices of an appeal were served before, and the transcript filed in this court after, the expiration of one year from the rendition of the final judgment below. For this reason appellees move to dismiss the appeal. Appellant resists this motion upon the ground that the appeal was taken by the service of the notices. He relies upon the first portion of section 640, Rev. St. 1881, and rule 23 of this court. Section 640, supra, must be considered and construed in connection with the other sections of the statute upon the same subject. Section 633 provides that appeals to this court, in all cases, must be taken within one year from the time the judgment is rendered. Section 631 is in harmony with it. Previous to the enactment of these sections such appeals might be taken within three years from the rendition of the judgment. The idea of the legisatu e doubtless was that one year is sufficient time in which to appeal, and all that should be allowed in justice to the judgment creditor. The

party from whose judgment an appeal may be taken is interested in having the question of appeal settled so that he may rely upon the stability of his judgment. All judgment creditors are alike interested.

It can hardly be supposed that the legislature, in providing for appeals to this court, intended to provide that if an appeal is taken under one section of the statute it must be perfected by the filing of a transcript. within one year from the rendition of the judgment, but, if taken under another section, the transcript may be filed after the expiration of the year. To give the statutes such a construction would be to hold that an appeal may be perfected within the year or not, as the judgment defendant and appealing party may choose, by taking his appeal under any particular section of the statute. Evidently, all judgment creditors are upon an equality, and all alike have the right to demand that appeals from their judgments shall be perfected within one year from their rendition by the filing of the transcript, so that the cases may go to the court for decision. If parties intending to appeal may delay perfecting their appeals by failing to file the transcripts, and thus delay the final decisions of the cases by taking the appeals under the first branch of section. 640, supra, it will follow, practically, that appeals of the least merit, and that ought to be speedily disposed of, will be longest delayed. If delay may be thus brought about by appealing under the first branch of that section, parties desiring delay only would, in every case, thus appeal under that section.

Section 640 provides for appeals after the term. It is as follows:

"After the close of the term at which the judgment is rendered, an appeal may be taken by the service of a notice in writing on the adverse party or his attorney, and also upon the clerk of the court in which the proceedings were had, stating the appeal from the judgment, or some specific part thereof; or such appeals may be taken by procuring from the clerk of the court a transcript of the record and proceedings in the suit, or so much thereof as is embraced in the appeal, and filing the same in the office of the clerk of the supreme court, who shall indorse thereon the time of filing, and issue a notice of the appeal to the appellee."

It will be observed that whether the appealing party serves the notices upon the adversary and clerk, or files the transcript, and the clerk issues the notice, this section makes no provision as to when the transcript shall be filed in the office of the clerk of the supreme court. To ascertain that fact, we must look to section 633, supra, which fixes the time within which all appeals in civil actions must be taken. If that section does not fix the time within which transcripts must be filed when the appeals are after the term, and under section 640, supra, the time is not fixed at all. Under the latter part of section 640 the appeal is taken by filing the transcript under section 633. That appeal must be within a year from the time the judgment is rendered. Harshman v. Armstrong, 43 Ind. 126.

It is provided in the Criminal Code that appeals must be taken within one year after the judgment is rendered, and that such appeals may be taken by the services of notices in a manner similar to that provided in the former part of section 640, supra; but it is also provided that the transcript may be filed within 90 days after the appeal is thus taken,

Rev. St. 1881, §§ 1885-1887. Winsett v. State, 54 Ind. 437. Section 640, supra, as we have seen, contains no such provision as to when the transcript shall be filed. It neither limits the time of filing the transcript within nor extends it beyond the year within which appeals may be taken. If the legislature intended that in any case transcripts in civil actions may be filed after the year, doubtless such provision would have been made, as in the Criminal Code. There must be a transcript filed at some time in order to have a perfected appeal. This court cannot pass upon a case until the transcript is filed and regularly brought before it. If, under section 640, the transcript may be filed 27 days after the expiration of the year, as in this case, when the notices are served as in the first branch of that section provided, there would seem to be no reason why the transcript might not be filed six months later. Appeals in civil actions must be taken within one year, and such appeals must be perfected appeals, which includes the filing of the transcript. Section 633 applies as well to appeals taken under the first branch of section 640 as to those taken under the second branch, and in both cases requires the appeal to be perfected within the year by the filing of the transcript. Whether or not the service of the notices under the first branch of that section works an appeal in any sense, or for any purpose, until the transcript is filed, or whether or not, when the transcript is filed, the appeal dates from the service of the notices, are questions which we need not now decide; but we are quite clear that the service of the notice alone does. not constitute the appeal that section 633 requires to be taken within. one year.

Rule 23 of this court provides that where an appeal is taken after the term by notices, as provided in the first branch of section 640 of the Code, (which is the same as section 556, 2 Rev. St. 1876, p. 241,) the transcript must be filed within 60 days from the time of the service, or the appeal so taken will be deemed to have been abandoned. This rule does not extend the time for filing the transcript beyond the year, nor was it attempted thereby to so extend the time. In the adoption of the rule the court was not attempting to do what belongs to the legislature. This is all apparent from the rule itself. There would be a possibility and probability of evil consequences resulting if the appealing party might serve notices of an appeal shortly after judgment, and have the whole year in which to perfect the appeal by filing the transcript. In the long delay the other party might mislay the notice served upon him, and forget that such a notice had been served, and thus the case, as to him, might go by default. It was to prevent such a result, doubtless, that the rule fixes the limit at 60 days. The 60 days thus fixed by the rule is a limitation, and not an extension. Appellant's counsel cite Hollensbe v. Thomas, 22 Ind. 375; Gumberts v. Adams Exp. Co., 28 Ind. 181; Day v. Herod, 33 Ind. 197; Barnett v. Gilmore, Id. 199; State v. Cressinger, 88 Ind. 499,-in support of their contention that there may be an appeal before the filing of the transcript. These cases involve appeals from boards of county commissioners and justices of the peace. Such appeals rest upon statutes very different from those authorizing ap

peals to this court. In bringing appeals here, the appellant must procure the transcript and see that it is filed. In appealing from county boards and justices of the peace the appealing party has nothing to do but to demand an appeal and file his bond within the proper time. When he has done this, the law makes it incumbent upon the auditor, in one instance, and upon the justice of the peace, in the other, to make out and file a transcript with the county clerk. When the appealing party has demanded an appeal, and filed his bond, he has done all that the law requires of him, and all that he can do. Hence, so far as he is concerned, he has taken an appeal. He cannot be made to suffer by the laches of the auditor or justice of the peace in failing to file the transcript. This is what the above cases decide. They are not controlling here for the reason, as we have before said, that in appealing to this court it is incumbent upon the party appealing to see to it that the transcript. is filed in time. That duty is imposed upon no one else.

It follows from our conclusions above expressed, that this appeal must be dismissed. The appeal is therefore dismissed, at appellant's

costs.

(104 Ind. 353)

LOUISVILLE, N. A. & C. Ry. Co. v. GRANTHAM.

Filed December 31, 1885.

1. EXCEPTIONS-BILL OF EXCEPTIONS- OMISSION OF PART OF THE EVIDENCEMAP OMITTED.

Where it is apparent that a bill of exceptions fails to give the entire evidence, although it may contain a statement to the contrary, no question will be considered by the supreme court that depends on the evidence for its proper decision, and this rule applies where a map showing where an injury occurred is omitted.

2. TRIAL INSTRUCTIONS-MUST BE CONSIDERED TOGETHER.

Although a single instruction may not contain a complete statement of the law in itself, if all the instructions, taken together, state the law properly there will be no reversal on that account.

Appeal from Clay circuit court.

Geo. W. Friedley, for appellant.

Smiley & Neff and Geo. A. Knight, for appellee.

Howk, J. In this case the appellee, Grantham, sued the Louisville, New Albany & Chicago Railway Company, appellant, in the Putnam circuit court, in a complaint of three paragraphs. The object of the suit was to recover damages for alleged injuries to two horses and three mares, owned by and the property of the appellee, and each of a certain specified value, which injuries to such animals, it was alleged, were caused by a locomotive engine and train of cars, owned and operated by the appellant, on the line of its railway, in Putnam county. In the first paragraph of his complaint appellee stated his cause of action under the provisions of the statute making a railway company liable for the killing or injury of animals by its locomotives or cars on its railroad tracks, unless its road is securely fenced in. In the second paragraph he alleged that v.4N.E.,no.1-4

his horses and mares were injured by appellant's locomotive and cars, by and through the negligence of its employes and servants in running its train, and without any fault or negligence on his part. In the third paragraph of his complaint he charged that his horses and mares were willfully injured by the employes and servants of the appellant, who had at the time the control and management of its locomotive and train of cars. Appellant answered by a general denial of the complaint, and of each paragraph thereof; and, the cause being at issue, on its application the venue thereof was changed to the court below. There the issues joined were tried by a jury, and a verdict was returned for the appellee, assessing his damages at $500. Over appellant's motions for a new trial, and in arrest, the court rendered judgment on the verdict.

In this court appellant has assigned a number of errors; but of these only one is noticed even by its learned counsel in his brief of this cause, namely, the overruling of its motion for a new trial. Of course, under the settled practice of this court, the other errors assigned by appellant, but not discussed by its counsel, are regarded here as waived, and are not considered. Goldsberry v. State, 69 Ind. 430; Williams v. Potter, 72 Ind. 354; Coffin v. Trustees, etc., 92 Ind. 337.

At the time the appellant perfected its appeal in this cause, by filing the record thereof in the office of the clerk of this court, it filed therewith what is called its "supersedeas brief," for the purpose of obtaining a supersedeas from the court or one of the judges thereof. This brief was filed by appellant in compliance with the last clause of rule 16 of the rules of this court, as adopted May 14, 1884, which reads as follows: "An application for a supersedeas must be accompanied by a brief, referring to the record by pages and lines, and pointing out the error or errors upon which the appellant relies." Such a brief is widely different from the brief which our decisions have uniformly required of the ap pellant on the final hearing of the appeal. Thus in Parker v. Hastings, 12 Ind. 654, the court said:

"In America, at least in Indiana, a brief, in addition to an abbreviated statement of the case, should contain a summary of the points or questions involved, with a citation of authorities, if authorities are relied on, and an argument based upon both, which should be characterized by perspicuity and conciseness, though, says Bouvier, when the argument is pertinent and weighty, it cannot be too extended.

For the want of, approximately, at least, such a brief as is here defined many appeals have been dismissed by this court, or the judgments appealed from have been affirmed. Bennett v. State, 22 Ind. 147; Deford v. Urbain, 42 Ind. 476; Gardner v. Stover, 43 Ind. 356; Harrison v. Hedges, 60 Ind. 266; Bray v. Franklin Life Ins. Co., 68 Ind. 6; Millikan v. State, 70 Ind. 283; Wilson v. Holloway, Id. 407; City of Anderson v. Neal, 88 Ind. 317; McCann v. Rodifer, 90 Ind. 602; Kaster v. Kaster, 93 Ind. 581; Arbuckle v. Biederman, 94 Ind. 168; Pratt v. Allen, 95 Ind. 404; Robbins v. Magee, 96 Ind. 174.

Usually, where a supersedeas brief is filed, the appellant afterwards files a further or additional brief, wherein he states the points or questions presented by the alleged errors of which he complains, cites the