Croxton v. Croxton

• Decision Date: 30 January 1943
• Docket Number: 16836.
• Parties: CROXTON v. CROXTON.
• Court: Indiana Appellate Court

46 N.E.2d 249

112 Ind.App. 645

CROXTON v. CROXTON.

No. 16836.

Appellate Court of Indiana, in Banc.

January 30, 1943

Atkinson & Sanders, of Auburn, for appellant.

Mountz & Mountz, of Garrett, for appellee.

ROYSE Judge.

This is an action in which the appellee filed exceptions to the final report of the appellant in the matter of the estate of Emmet S. Croxton, deceased. The court found for appellee on certain exceptions, disallowed certain credits claimed by appellant in her final report, and found that the estate was not insolvent, as was represented by appellant in her final report, and that appellee's claim should be paid in full. Judgment that the final report should be recast in accordance with the court's findings to show payment in full of appellee's claim and that appellee should recover his costs.

The errors assigned in this court are the overruling of appellant's motion for a new trial, and the alleged error of the trial court in overruling appellant's motions to strike out exceptions numbered 9 and 11.

The motion for a new trial is on the grounds: (1) The decision of the court is not sustained by the evidence; (2) the decision of the court is contrary to law.

Appellee claims the evidence is not in the record and therefore the motion for a new trial presents no question for the consideration of the court.

The record discloses that trial was had on the 16th day of April 1941, the same being the 27th judicial day of the March Term 1941, of the Steuben Circuit Court. On the same day the court found for appellee, and also on the same day the motion for new trial was filed and overruled. It does not appear from the record that any time was given for filing the bill of exceptions. Afterwards, on the 27th day of June, 1941, being the 23d judicial day of the June Term, 1941, of the court appellant tendered her bill of exceptions containing the evidence, which was signed by the court and ordered filed.

It is the well-settled law in this jurisdiction that when no time is given in which to file a bill of exceptions, and it is signed and filed after the expiration of the term at which the motion for a new trial was overruled and judgment rendered, such a bill of exceptions is not a part of the record and cannot be considered. Johnson et al. v Ballard et al., 1897, 148 Ind. 181, 182, 46 N.E. 674; Taylor et al. v. Canaday, Rec., 1900, 155 Ind. 671, 677, 57 N.E. 524, 59 N.E. 20; Flanagan v. State, 1922, 192 Ind. 662, 137 N.E. 179; Pesch v. Gretter, 1939, 216 Ind. 396, 24 N.E.2d 923; Union Insurance Co. of Indiana v. Glover, 1941, 109 Ind.App. 315, 34 N.E.2d 934; Heckman v. Howard, 1941, 109 Ind.App. 548, 36 N.E.2d 957.

In the case at bar, time not having been granted to file the bill of exceptions after the term, the appellant's first assignment of error presents no question to this court.

When objections are filed to the report of an administrator or executor, the report...