Cornell v. Hollett

• Citation: 140 Ind. 634,40 N.E. 132
• Parties: CORNELL v. HOLLETT et al.
• Decision Date: 03 April 1895
• Court: Supreme Court of Indiana

140 Ind. 634

40 N.E. 132

CORNELL

v.HOLLETT et al.

Supreme Court of Indiana.

April 3, 1895.

Appeal from circuit court, Porter county; U. Z. Wiley, Special Judge.

Action by Cordelia F. Cornell against James D. Hollett and others to set aside the will of Amanda Freeman. From a verdict and judgment for defendants, and the denial of a new trial, plaintiff appeals. Affirmed.

A. D. Bartholomew, Wm. Johnston, and Agnew & Kelly, for appellant. A. L. Jones, for appellees.

McCABE, C. J.

The appellant sued the appellees to set aside the will of Amanda Freeman. The issues formed upon the complaint were tried by a jury, resulting in a general verdict and judgment for the defendants, over the plaintiff's (appellant's) motion for a new trial. Error is assigned on the action of the circuit court in overruling appellant's motion for a new trial. The only rulings complained of in the motion for a new trial that are presented by the brief of appellant's counsel are those relating to the admission and exclusion of evidence. These rulings can only be presented to this court by being preserved in a proper bill of exceptions. On overruling the motion for a new trial, on the 26th day of July, 1893, 60 days' time was allowed the appellant in which to file her bill of exceptions. Her bill of exceptions was filed on the 28th day of September following, 4 days after the expiration of the 60 days allowed. The bill concludes as follows: “And the plaintiff now here presents this, his bill of exceptions, and prays that the same may be signed, sealed, and made a part of the record in the above-entitled cause, which is accordingly done, this 28th day of September, 1893. Ulric Z. Wiley, Judge pro Tem. Porter Circuit Court.” On the margin of the paper on which the bill is typewritten, being on the margin of the longhand manuscript, outside of the manuscript, and outside of the bill, is the following indorsement, written with a pen, and signed, in the handwriting of the judge: “This bill of exceptions presented to me for examination and signature, this 21st day of September, 1893. Ulric Z. Wiley, Special Judge Porter Circuit Court.” Had this date of presentation been stated in the bill of exceptions, it would have brought the bill within the provisions of the statute, and it would have become a part of the record, though actually filed in the clerk's office after the expiration of the 60 days. The statement of presentation was in time, being within the 60 days allowed. But the statute expressly requires that the date of presentation shall be stated in the bill of exceptions, not in the margin or on the back...