Hansher v. Hanshew

• Decision Date: 24 November 1883
• Docket Number: 10,194
• Citation: 94 Ind. 208
• Parties: Hansher v. Hanshew et al
• Court: Indiana Supreme Court

94 Ind. 208

Hansher v. Hanshew et al

No. 10,194

Supreme Court of Indiana

November 24, 1883

Rehairing Date: March 15, 1884

Reported at: 94 Ind. 208 at 210.

From the Tipton Circuit Court.

The judgment is affirmed, with costs.

J Jones, for appellant.

R. B Beauchamp and G. H. Gifford, for appellees.

OPINION

Howk, C. J.

This was a suit by the appellant, Hansher, against the appellees Hanshew and Daugherty, upon a complaint and supplemental complaint. The issues joined in the cause by the appellees' joint answer by a general denial were tried by a jury, and a verdict was returned for the appellees, and judgment was rendered accordingly.

In this court the first error assigned by the appellant is the overruling of his motion in arrest of judgment. The record shows that this motion was not made by the appellant until after the trial court had rendered its judgment. The motion, therefore, came too late, and no question is thereby presented for the decision of this court. Buskirk Pr., p. 264, et seq.; Smith v. Dodds, 35 Ind. 452; Brownlee v. Hare, 64 Ind. 311.

The only other error assigned by the appellant is the overruling of his motion for a new trial. In this motion the only causes assigned for a new trial were, that the verdict of the jury was contrary to law and was not sustained by sufficient evidence. Manifestly, these causes for a new trial can not be considered, and will present no question for our decision, if it be true, as appellees' counsel claim, that the bill of exceptions containing the evidence is not a part of the record. It is shown by the transcript that on May 20th, 1881, sixty days were given the plaintiff in which to file his bill of exceptions, and that such bill was not filed until the 24th day of July, 1881, or until five days after the expiration of the time given. These proceedings were had while the civil code of 1852 was still in full force. Under that code, it was settled by the decisions of this court, that where time was given extending beyond the term, in which to prepare and file a bill of exceptions, the record must affirmatively show that the bill was not only signed but filed within the time limited, or it will not constitute a part of the record. Buskirk Pr., p. 144; Toledo, etc., R. W. Co. v. Howes, 68 Ind. 458; Dunn v. Hubble, 81 Ind. 489.

In the case at bar, it must be held, therefore, that the bill of exceptions is not a part of the record.

The judgment is affirmed, with costs.

The appellant asks a...