Chicago & C.T. Ry. Co. v. Eggers

• Decision Date: 14 January 1897
• Citation: 45 N.E. 786,147 Ind. 299
• Parties: CHICAGO & C. T. RY. CO. et al. v. EGGERS.
• Court: Indiana Supreme Court

147 Ind. 299

45 N.E. 786

CHICAGO & C. T. RY. CO. et al.

v.EGGERS.¹

Supreme Court of Indiana.

Jan. 14, 1897.

Appeal from circuit court, Lake county; J. H. Gillett, Judge.

Action by Frederick A. Eggers against the Chicago & Calumet Terminal Railway Company and others. Decree for plaintiff, and defendants appeal. Affirmed.

J. H. Collins, T. J. Wood, and John B. Peterson, for appellants. J. W. Youche and E. D. Crumpacker, for appellee.

JORDAN, C. J.

Action by the appellee against the Chicago & Calumet Terminal Railway Company, the Baltimore, Ohio & Chicago Railroad Company, and the Baltimore & Ohio Railroad Company, to enforce a certain contract for the sale of real estate for a right of way. After setting out the execution of the contract for the sale of said right by appellee to the first-mentioned appellant, facts are alleged showing that the other appellants purchased this right of way of the terminal company, and became liable for the performance of the contract set out in the complaint. Other facts are averred, which disclosed that the two Baltimore companies have incorporated the real estate into their railroad, and were using the same as a right of way. The relief demanded by the appellee in his complaint was a money judgment, and that a lien be declared upon the land in dispute to secure the payment of the same, etc. Under the issues joined in the action, a trial by the court resulted in a judgment for $5,219, and in adjudging a lien in favor of appellee, etc. Appellants all appeal to this court, and the Baltimore, Ohio & Chicago Company and the Baltimore & Ohio Company have assigned but two errors, to wit: First, that the court erred in overruling the motion for a new trial; second, overruling objections to the form and substance of the decree. The reasons assigned in the motion for a new trial were that the finding of the court is contrary to law, and that its finding is also contrary to the evidence.

Counsel for appellee insist that we are forbidden, under a well-settled rule of this court, to consider any of the evidence, for the reason that it affirmatively appears that all of the evidence given upon the trial is not in the record. Upon examination of what purports to be a bill of exceptions, it is disclosed that counsel are correct in their insistence. There are statements in this bill that a certain letter and other documents were introduced and read in evidence, but these do not appear therein. The uniform rule of this court is that notwithstanding the statement in the bill that it contains all of the evidence given in the cause, still, when it is affirmatively shown upon its face that such statement is not true, we cannot consider and decide any question which depends for its decision upon the entire evidence. This rule is firmly settled by numerous decisions of this court. Shimer v. Butler University, 87 Ind. 218; Collins v. Collins, 100 Ind. 266; Jennings v. Durham, 101 Ind. 391. When a part of the evidence, documentary or otherwise, given in the lower court, is omitted, it is manifest that this court, upon appeal, cannot intelligently or properly decide what bearing or effect, when considered in connection with the other evidence, ought to be given to the part omitted. Hence, in cases like the one at bar, where the finding of the court or verdict of the jury is assailed upon the ground that the same is contrary to the evidence, the rule asserted applies with full force, and all the evidence must be incorporated into the record; otherwise, we must presume in favor of the ruling of the lower court. See Johnson v. Wiley, 74 Ind. 233.

Upon other grounds, it appears that none of the evidence is properly in the record. It is shown that the longhand manuscript of the official shorthand reporter who took down the evidence, and the bill of exceptions embracing the same, were filed on March 9, 1894; but in no manner does it affirmatively appear that the filing of the longhand manuscript of the evidence was, in point of time, antecedent to its being incorporated into the bill of exceptions, as required by the statute. That this is essential is settled by the decisions of this court. See Manley v. Felty (Ind. Sup.) 45 N. E. 74, and cases there cited; Rogers v. Elch (Ind. Sup.) 45 N. E. 93;Reid v. Houston, 49 Ind. 181;Joseph v. Weld (Ind. Sup.) 45 N. E. 467. Under the holding in these cases, no part of the evidence can be considered as legitimately in the record, and therefore we are precluded from reviewing any of the questions arising out of the action of ...