Joseph v. Mather

• Citation: 10 N.E. 78,110 Ind. 114
• Decision Date: 13 January 1887
• Docket Number: 13,034
• Parties: Joseph et al. v. Mather
• Court: Indiana Supreme Court

10 N.E. 78

110 Ind. 114

Joseph et al. v. Mather

No. 13,034

Supreme Court of Indiana

January 13, 1887

Petition for a Rehearing Overruled March 11, 1887.

From the Knox Circuit Court.

The judgment is affirmed, with costs.

W. A Cullop, G. W. Shaw and C. B. Kissinger, for appellants.

G. G Reily and W. C. Niblack, for appellee.

OPINION

Howk, J.

In this case, the only error assigned by appellants, the defendants below, is the overruling of their motion for a new trial.

It is shown by the record of this cause, that appellants' written motion for a new trial was filed in and overruled by the court below, on the 25th day of February, 1886, and that twenty days time was then and there given appellants to file their bill of exceptions herein. It is further shown by a memorandum of the clerk of the court below, that appellants filed their bill of exceptions herein, on the 31st day of March, 1886. The bill of exceptions thus filed concludes as follows:

"And now defendants present this their bill of exceptions, and pray that the same may be signed, filed and made a part of the record in this cause, which is done this 31st day of March, 1886.

(Signed) N. F. Malott, Judge K. C. Ct."

In section 629, R. S. 1881, in force since September 19th, 1881 it is provided in effect that when the record does not otherwise show the decision excepted to, or the grounds of objection thereto, "the party objecting must, within such time as may be allowed, present to the judge a proper bill of exceptions, which, if true, he shall promptly sign and cause it to be filed in the cause; if not true, the judge shall correct, sign, and cause it to be filed without delay." It is also provided in the same section, that "the date of the presentation shall be stated in the bill of exceptions."

Applying these statutory provisions to the facts shown by the record, in the case in hand, as we have heretofore stated them, it is very clear that appellants' bill of exceptions herein was not, within the twenty days time allowed by the court below, presented to the judge of such court. The twenty days time, allowed by the court, expired on the 17th day of March, 1886; and "the date of the presentation" to the judge of the court, of appellants' bill of exceptions, was stated therein, as "this 31st day of March, 1886." Manifestly, therefore, appellants' bill of exceptions herein, not having been presented to the judge within the time allowed by the court, did not become, and can not be considered here as constituting, any part of the record of this cause. Terre Haute, etc., R. R. Co. v. Bissell, 108 Ind. 113, 9 N.E. 144; Robinson v. Anderson, 106 Ind. 152, 6 N.E. 12; Hamm v. Romine, 98 Ind. 77.

It follows, therefore, that neither the evidence on the trial, nor the rulings of the court in the admission of evidence, which appellants attempted to bring into the record by their bill of exceptions, are so presented here as that we can consider or pass upon any of the causes for a new trial, predicated thereon.

This conclusion leaves for our consideration only one of...