¶1On Petition eor Rehearing.
¶2Appellant has filed a petition for' a rehearing in which he earnestly insists that whether or not the motion for a new trial is in the record was waived by the failure of the Attorney-General to raise that question in his printed brief. It was the duty of appellant to examine the record and see that it was correct, before the same was filed, and if necessary to take timely steps to correct any errors in the same. Miller v. Evansville, etc., R. Co., 143 Ind. 570; Drake v. State, 145 Ind. 210, 218; Watson v. Finch, 150 Ind. 183, 184, 185; Fidelity, etc., Union v. Byrd, 154 Ind. 47, 48; Kinsey v. Myers, 41 Ind. 543, 556, 557; Ewbank’s Manual, §§117, 217.
¶3Even if the Attorney-General had not called attention to the. fact that the motion for a new trial was not in the record, the court was not required to disregard this infirmity and determine questions not in the record on account of the defect in the transcript. Miller v. Evansville, etc., R. Co., supra, on p. 573; Drake v. State, supra, p. 219.
¶4In Martin v. Martin, 74 Ind. 207, this court by Woods, J., said upon this question: “The issue tendered for our *637decision by the appellánt in every ease of appeal is, that ‘there is manifest error in the record’, in some■ specified particular or particulars. The appellee joins issue and says there is no error. The trial is by the record, not by the argument of counsel, and the appellant has no right to prevail, and we should be derelict in duty if we permitted him to prevail, unless the error is made manifest.
¶5“No matter what error the court below may have committed, it is not manifest in the record, unless saved in the lower court and presented in this court, in accordance with the rules of practice. These rules of practice are the law of the land, their-reasonableness is justified by experience, and, unless ready to abrogate, we have no right to disregard them. We never go beyond the brief of the appellant to search the record in quest of errors which have not been pointed out in -the brief; but the appellee, without filing any brief at all, is entitled to the benefit of everything in the record which may prevent a reversal of the judgment upon the -errors assigned; and, because the counsel on both sides may discuss some question with very great learning and ability, as was done in this case, we are not therefore permitted to'shut our eyes against the fact, which we can not otherwise help seeing, that the question is not in the record. The silence of the appellee on any point is not equal to an agreement to waive the point; the burden is on the appellant to show the error which he has assigned. * …
¶6“If there are points in a record which counsel do not suggest, and we do not perceive them, there are numerous decisions that we will not consider such points on a petition for a rehearing, but there is no'rule which permits us to ignore what we do see.' We read the briefs of counsel, but, as the appeal is tried by the record, we examine that too.” See, also, Big Creek Stone Co. v. Seward, 144 Ind. 205, 209; Travelers Ins. Co. v. Prairie School Tp., 151 Ind. 36, 41.
¶7The order-book entry showing the filing of a motion for a new trial is copied into the transcript, and instead of setting out the motion as a part of such entry, the clerk has re*638ferred to the pages and lines where the same is copied into the bill of exceptions. Appellant in his petition for a rehearing has called our attention to this part of the transcript, and insists that the motion for a new trial is thereby-made a part of such order-book entry and is properly in the record. It has been uniformly held by this court that where a pleading or written instrument is a part of the record proper without a bill of exceptions, and has been copied into the transcript as a part‘of such record, and is also a part of a bill of exceptions, that it need not again be set out in the bill of exceptions, but the clerk may refer to the pages and lines of the transcript where it may be found.
¶8It is only, however, where the paper or document in the case is already properly in the transcript as a part of the record that the clerk may refer by page and line to where the same may be found instead of making another copy. Reed v. State, 147 Ind. 41, 48; Seston v. Tether, 145 Ind. 251, 253, 254; Gussman v. Gussman, 140 Ind. 433; Cottrell v. Aetna Life Ins. Co., 97 Ind. 311, 312; Board, etc., v. Karp, 90 Ind. 236, 238, 239; Douglass v. State, 72 Ind. 385, 389, 390; Colee v. State, 75 Ind. 511, 513; Stewart v. Rankin, 39 Ind. 161, 164; Klingensmith v. Faulkner, 84 Ind. 331.
¶9As copying the motion for a new trial in the bill of exceptions did not bring the same into or make it a part of the record, under the rule stated, we can not look from the order-book entry, where it belongs and should have been copied, to the bill of exceptions to consider it. The bill of exceptions not bringing said motion into the record, the-reference thereto by page and line made by the clerk in the order-book entry did not make the motion a part of such entry. Douglass v. State, supra; Reed v. State, supra, and the other cases cited.
¶10After a careful review of the questions decided in the original opinion, we see no reason to change the views there expressed. The petition for a rehearing is therefore overruled.