Collins v. Collins

• Decision Date: 17 February 1885
• Docket Number: 11,518
• Parties: Collins et al. v. Collins
• Court: Indiana Supreme Court

100 Ind. 266

Collins et al. v. Collins

No. 11,518

Supreme Court of Indiana

February 17, 1885

From the Delaware Circuit Court.

The judgment is affirmed, with costs.

J. R McMahan, T. J. Blount and C. B. Templer, for appellants.

W Brotherton, R. S. Gregory and A. C. Silverburg, for appellee.

OPINION

Howk J.

This was a suit by the appellee, Anna V. Collins, against her husband, John Collins, under the provisions of sections 5132 to 5138, R. S. 1881, in force since September 19th, 1881, to obtain provision for the support of herself and her infant daughter in her custody. A large number of persons were made defendants to the suit, upon the ground that they were either indebted to the appellant John Collins, or had his property or money in their possession. The cause was put at issue and tried by the court, and a finding was made for the appellee, and over a motion for a new trial judgment was rendered accordingly.

The only questions discussed by the appellants' counsel in their argument of this cause are such as arise under the alleged error of the court in overruling their motion for a new trial. Two points are made by counsel in argument namely: First. That the finding of the court was not sustained by sufficient evidence; and, Secondly. That the amount of the allowance to appellee was excessive. Appellee's counsel make the point, however, that this court can neither consider nor decide these questions, because, they say, that although the bill of exceptions contains the usual statement, "this was all the evidence given in the cause," yet the bill shows upon its face that in fact it does not contain the evidence of all the witnesses who testified on the trial of the cause. The fact seems to be in full accordance with the statement of appellee's counsel. In three different instances, and as to three different witnesses, it is stated in the bill of exceptions, as the same appears in the transcript, that the witness "testified as follows," but the evidence of these three witnesses, be it much or little, is not set out in the bill of exceptions or elsewhere in the record of this cause. Appellee's counsel say in their brief that these three witnesses "did testify in the cause to facts material to the issues;" that they "testified in extenso, and not one word of the testimony of any one of them appears in the record." This statement is not controverted by the appellants' counsel, but they claim that it is dehors the record;...