Downey v. Head

• Decision Date: 25 September 1894
• Citation: 138 Ind. 503,38 N.E. 169
• Parties: DOWNEY et al. v. HEAD.
• Court: Indiana Supreme Court

138 Ind. 503

38 N.E. 169

DOWNEY et al.

v.HEAD.

Supreme Court of Indiana.

Sept. 25, 1894.

Appeal from circuit court, Lake county; William Johnston, Judge.

Action by Daniel Head against Peter Downey and others to foreclose a mortgage. Judgment for plaintiff, and defendants appeal. Affirmed.

A. L. Jones, C. N. Morton, and Griffin & Wile, for appellants. W. A. Ketcham, for appellee.

HOWARD, J.

This was an action by the appellee, Daniel Head, against the appellants and others, to foreclose a mortgage on certain real estate in Lake county. There was a finding by the court in favor of said appellee, followed by a decree and order of sale of said real estate. The errors assigned on this appeal are (1) that the cause was tried without a complaint filed; (2) that, after demurrer sustained to the complaint originally filed, the appellee filed no amended complaint; and (3) the overruling of the motion for a new trial.

As to the first two alleged errors, it is sufficient to say that it appears from the return by the clerk of the Lake circuit court to a writ of certiorari issued out of this court that an amended complaint was duly filed in the Lake circuit court. Upon this amended complaint the cause was tried, and duly proceeded to judgment.

The only brief filed by appellants is a supersedeas brief, devoted in great part to a consideration of the first two assignments of error. In this brief it is said: “The time for filing a bill of exceptions in the case has not yet expired, and the same is now under consideration by the court, and will be duly brought up, upon certiorari, at a later date, when the same shall have been filed.” The record, however, shows no such writ of certiorari prayed for or issued. In the same brief, and in relation to the third assignment of error, counsel speak of “other errors occurring at the trial, which will be hereafter noted, when the bill of exceptions shall be duly certified up.” But the record shows no bill of exceptions “duly certified up,” nor any certificate from the clerk of the Lake circuit court as to any bill of exceptions filed in his office. If a bill was filed the transcript should show the fact, under the seal and certificate of the clerk. Rev. St. 1894, § 641 (Rev. St. 1881, § 629); Loy v. Loy, 90 Ind. 404;Shulse v. McWilliams, 104 Ind. 512, 3 N. E. 243;Nofsinger v. Reynolds, 52 Ind. 218;Huff v. Krause, 63 Ind. 396;Conkey v. Conder (last term) 37 N. E. 132. We find with the record, but not in any way...