Harker v. Eisenhut

• Decision Date: 15 March 1937
• Docket Number: 26703.
• Citation: 6 N.E.2d 936,212 Ind. 67
• Parties: HARKER et al. v. EISENHUT.
• Court: Indiana Supreme Court

6 N.E.2d 936

212 Ind. 67

HARKER et al. v. EISENHUT.

No. 26703.

Supreme Court of Indiana

March 15, 1937

Appeal from Dubois Circuit Court; Herbert T. Rader, Special judge.

Herbert W. Lane, of Jasper, and Ely & Corn, of Petersburg, for appellants.

S T. Kuiken and W. E. Cox, both of Jasper, for appellee.

HUGHES Judge.

This is an appeal taken from exceptions to a final report filed by John H. Eisenhut, as executor of the will of George Harker deceased.

The errors assigned are: (1) The court erred in hearing said cause; (2) the court erred in refusing to grant a change of venue from the county on the filing of the proper affidavit and (3) the court erred in overruling appellants' motion for a new trial.

The first question that confronts us is whether the bill of exceptions is properly in the record. The motion for a new trial was overruled on the 29th day of January, 1936, and what purports to be a bill of exceptions was filed April 24, 1936, at another term of court than when the motion for a new trial was overruled. No time was given to file a bill of exceptions and, when a bill of exceptions containing the evidence is to be filed after the term, leave therefor must be given by the court at the time of the ruling on the motion for a new trial. Taylor v. State (1921) 191 Ind. 200, 132 N.E. 294; Bass v. State (1918) 188 Ind. 21, 120 N.E. 657. It further appears that there is no showing that the bill of exceptions was ever filed. The certificate of the clerk shows that the transcript was filed on April 21, 1935, and the certificate of the special judge shows that he ordered what purported to be a bill of exceptions to be filed on April 29, 1936, with the clerk, but nowhere in the record does it show that it was filed. The transcript must show that the bill of exceptions was filed in the clerk's office or it is no part of the record. Loy v. Loy, 90 Ind. 404; Shulse v. McWilliams, 104 Ind. 512, 3 N.E. 243. Moreover, there is no caption or formal commencement of the purported bill of exceptions to identify it. The bill of exceptions is not properly in the record, and therefore there is no question presented by it that we can consider. The only question properly presented is whether the court erred in refusing to grant appellants a change of venue from the county. This question must be answered in the negative. At the time the motion for a change of venue from the county was filed, chapter 71, Acts 1935, p. 199, was in full force and effect and is as follows:

'That in any action, proceeding, or matter, of any character or nature whatever, relating to, connected with or involving the estate of a decedent in any manner whatever, any of the parties thereto shall be entitled to change of judge or a change of venue from the county for the same reasons, and upon the same terms and conditions, upon which there may be a change of judge or a change of venue from the county on...