Hancher v. Stephenson

• Decision Date: 22 April 1897
• Docket Number: 18,111
• Parties: Hancher et al. v. Stephenson et al
• Court: Indiana Supreme Court

46 N.E. 916

147 Ind. 498

Hancher et al. v. Stephenson et al

No. 18,111

Supreme Court of Indiana

April 22, 1897

From the Tipton Circuit Court.

Affirmed.

Joshua Jones, for appellants.

Daniel Waugh, John P. Kemp and James N. Waugh, for appellees.

OPINION

McCabe, J.

The appellants sued the appellees to review a judgment. The circuit court sustained a demurrer to the complaint for review. This ruling is assigned as the only error complained of. The complaint to review is accompanied by what purports to be a transcript of the proceedings and judgment sought to be reviewed. The errors alleged to have been committed in that proceeding, leading to the judgment to be reviewed, are thus stated in the complaint for review: 1, "The court erred in permitting the defendant, Florence E. Stephenson, to testify as a witness in said cause; 2, said court erred in overruling said plaintiff's motion for a new trial in said cause." The first specification is not an available error. It is a proper ground for a motion for a new trial, but not an assignment of error either on appeal from the judgment or a bill to review it. The ruling denying a new trial is the only error of law which it is alleged in the complaint to review, appears in the proceedings and judgment sought to be reviewed, and it is only such errors of law as appear in the proceedings and judgment which constitute ground for review for such cause. Section 627 Burns' R. S. 1894 (615, R. S. 1881). The admission of the testimony of Florence E. Stephenson is made one of the grounds of the motion for a new trial. The only other grounds specified in the motion for a new trial are that the verdict is not sustained by sufficient evidence and is contrary to law. To make any of these errors appear in the record of the proceedings and judgment sought to be reviewed the evidence must be in the record, and that requires a bill of exceptions incorporating it, so filed as to become a part of the record.

There is in the transcript accompanying the complaint to review what purports to be a bill of exceptions, purporting to contain at least a part of the evidence, and especially the testimony of Florence E. Stephenson and the objection to the admission thereof and the court's ruling thereon. But it appears from such bill of exceptions that the trial took place at the September term for 1894, on the 13th judicial day of said term, which was the 17th day of September of that year. The bill of exceptions was not filed in the clerk's office until...