Cammack v. Kentucky Home Mut. Life Ins. Co., No. 17071.

• Docket Nº: No. 17071.
• Citation: 49 N.E.2d 384, 113 Ind.App. 538
• Case Date: June 22, 1943
• Court: Court of Appeals of Indiana

113 Ind.App. 538
49 N.E.2d 384

CAMMACK
v.
KENTUCKY HOME MUT. LIFE INS. CO.

No. 17071.

Appellate Court of Indiana, in Banc.

June 22, 1943.

Appeal from Morgan Circuit Court; Omar O'Harrow, Judge.

Action by Grace Cammack against the Kentucky Home Mutual Life Insurance Company, successor to the Inter-Southern Life Insurance Company, both organized under the laws of the State of Kentucky, on a life policy. From a judgment for defendant, the plaintiff appeals.

Affirmed.

[49 N.E.2d 385]

O. B. Hanger and Connor D. Ross, both of Indianapolis, for appellant.

White, Wright & Boleman and George Forrey III, all of Indianapolis, for appellee.

CRUMPACKER, Presiding Judge.

This action involves a policy of insurance issued on the life of one Jesse H. Cammack by the Inter-Southern Life Insurance Company and subsequently reinsured by the appellee, Kentucky Home Mutual Life Insurance Company, upon which policy the appellant, as the beneficiary thereof, brought suit to recover its proceeds.

On trial of the cause judgment was rendered against the appellant and in this appeal she seeks relief on three assigned errors: (1) The trial court erred in overruling her motion for a new trial; (2) the trial court erred in each of its conclusions of law; and (3) the trial court erred in its conclusion of law No. 1.

[1][2] Appellant's motion for a new trial was overruled on June 29, 1942, the 49th day of the May term of the Morgan Circuit Court, where the cause was tried. No time was then asked or given in which to file a bill of exceptions containing the evidence and no such bill was, in fact, filed during said May term. On July 31, 1942, during what the record designates as a “Vacation Term,” the court made the following entry: “Comes now the plaintiff and prays an appeal in the above entitled cause of action to the Appellate Court of Indiana. Ninety (90) days from the date of the official motion for a new trial (June 29, 1942) is granted to file Bill of Exceptions (September 26, 1942).” It has long since become the fixed and settled law of this state that a grant of time in which to file a general bill of exceptions, not made at the time the motion for a new trial was overruled, is void. Harker et al. v. Eisenhut, 1937, 212 Ind. 67, 6 N.E.2d 936;Huntington Brewing Co. v. Miles, 1912, 177 Ind. 109, 96 N.E. 145;Stremmel v. Gaar, Scott & Co., 1911, 176 Ind. 600, 96 N.E. 703;Taylor v. State, 1921, 191 Ind. 200, 132 N.E. 294;Crouse et al. v. Crouse, 1939, 106 Ind.App. 565, 21 N.E.2d 71. Such being the law it is apparent that the evidence in the instant case is not in the record and any question involved in this appeal that requires reference to or consideration of such evidence is not before us for review.

[3] Appellant's motion for a new trial, the overruling of which constitutes her first assignment of error, rests upon the following grounds: (1) The decision of the court is contrary to law; (2) the decision of the court is contrary to the evidence; (3) the

[49 N.E.2d 386]

decision of the court is not sustained by sufficient evidence; (4) the decision of the court is contrary to the weight of the...