Chicago and Southeastern Railway Company v. Cason

• Decision Date: 24 May 1898
• Docket Number: 18,604
• Parties: Chicago and Southeastern Railway Company v. Cason et al
• Court: Indiana Supreme Court

50 N.E. 569

151 Ind. 329

Chicago and Southeastern Railway Company v. Cason et al

No. 18,604

Supreme Court of Indiana

May 24, 1898

Rehearing Denied Oct. 14, 1898.

From the Hamilton Circuit Court.

Affirmed.

W. R Crawford, U. C. Stover, F. E. Gavin, C. F. Coffin and T. P Davis, for appellant.

C. M. Zion, for appellees.

OPINION

McCabe, J.

This was a suit instituted in the Boone Circuit Court by the appellees, some of whom were common creditors and some judgment creditors of the appellant, seeking to compel the payment of their debts, and to have a receiver appointed for appellant. From the order appointing a receiver there was an appeal to this court. The judgment or order appointing the receiver was reversed because the same had been done without notice to the appellant, there being no showing of necessity of appointing without notice. Chicago, etc., R. W. Co. v. Cason, 133 Ind. 49, 32 N.E. 827. On the return of the cause to the trial court the venue was changed to the Hamilton Circuit Court, where a trial resulted in a finding and judgment for each of the several creditors, and an order on the defendant to pay into court $ 776.66. The receiver's report was filed and approved. The court refused to permit the appellant to file exceptions to that report, and overruled appellant's motion for a new trial, and to modify the judgment so as to strike out the order to pay into court the $ 776.66, and also to tax the costs occasioned by the receivership against the appellees.

The exceptions to the receiver's report are made a part of the record by incorporating the same into a bill of exceptions properly in the record. It consists of specific objections to certain items of allowance in such report, but the report itself is not made a part of the record by bill of exceptions, though what purports to be such report has been copied by the clerk into the transcript. We can only know whether the exceptions thereto are well taken by an examination of such report, and we are not authorized to do so unless it has been properly made a part of the record by bill of exceptions. State, ex rel., v. Crowe, 150 Ind. 455, 50 N.E. 471.

The motion to modify the judgment is in the same condition. Neither the report of the receiver nor the evidence being in the record, we are without means of knowing that it was improper to order the defendant to pay into court the $ 776.66. There was an attempt to bring into the record the evidence, but it was unsuccessful. The record shows that what purports to be the bill of exceptions was filed in court on June 23, 1896, which was in time; but the judge certifies at the close of the bill, above his signature, that it was signed on the 20th day of February, 1897. That was not in time. But an attempt to obviate this difficulty has been made by having the judge indorse on the back of the bill the following: "This bill was presented to me this 23d of June, 1896, for my signature, and taken under advisement. R. R. Stephenson, Judge." Had this statement been in the bill of exceptions, it would have shown that it was presented to the judge in time, and then, no matter how long thereafter it was filed, it would have been properly in the record. But such statement must be in the bill and not indorsed on or attached to it. ...