Crumley v. Hickman

• Decision Date: 03 January 1884
• Docket Number: 10,700
• Citation: 92 Ind. 388
• Parties: Crumley et al. v. Hickman et al
• Court: Indiana Supreme Court

92 Ind. 388

Crumley et al. v. Hickman et al

No. 10,700

Supreme Court of Indiana

January 3, 1884

From the Blackford Circuit Court.

Judgment affirmed at the appellants' costs.

J. M Haynes and W. H. Carroll, for appellants.

J. W Headington, D. T. Taylor, J. M. Smith and J. J. M LaFollette, for appellees.

OPINION

Hammond, J.

This case comes to this court on a reserved question of law growing out of the dismissal by the trial court of the appellants' appeal from certain proceedings, the nature of which does not appear, had before the county board. The appeal was dismissed on the appellees' written motion, supported by two affidavits. The motion and affidavit appear in the transcript in connection with the order-books entries made by the clerk, but are omitted at their proper place in the bill of exceptions. The clerk there refers to them at the previous pages in the transcript, where they are copied.

The motion and affidavits are not properly in the record. It is provided in section 626, R. S. 1881, that "It shall not be necessary to copy a written instrument or any documentary evidence into a bill of exceptions, but it shall be sufficient to refer to such evidence, if its appropriate place be designated by the words 'here insert.'" The former code contained the same provision. Section 343, 2 R. S. 1876, p. 176. In construing this statute it has been held that where a written instrument properly and legally constitutes a part of the record without being made such by a bill of exceptions or an order of court, and where it has already been copied into the transcript, the clerk is not required to again copy such instrument into the bill of exceptions, but may make the same a part thereof by inserting in the designated place a reference to the page and line of the transcript where the same can be found. But if such instrument does not properly constitute a part of the record, without a bill of exceptions, or an order of court, it has also been held that it is the duty of the clerk in such case, in making a transcript, to insert such instrument at its proper place in the bill of exceptions; otherwise it is no part of the record. Stewart v. Rankin, 39 Ind. 161; Kesler v. Myers, 41 Ind. 543; Carver v. Carver, 44 Ind. 265; Aurora Fire Ins. Co. v. Johnson, 46 Ind. 315; Kimball v. Loomis, 62 Ind. 201; Colee v. State, 75 Ind. 511; Blizzard v. Riley, 83 Ind. 300.

A motion in the trial court to dismiss an appeal from an inferior tribunal is not a part of the record unless made so by bill of exceptions or an order of court. Burntrager v. McDonald, 34 Ind. 277; Meeker v. Board, etc., 53 Ind. 31; Scotten v. Divilbiss, 60 Ind. 37.

The motion to dismiss the appeal, and the affidavits filed therewith, not being properly in the record, we can look only to what is contained in the bill...