Harker v. Eisenhut, No. 26703.

Docket NºNo. 26703.
Citation6 N.E.2d 936, 212 Ind. 67
Case DateMarch 15, 1937
CourtSupreme Court of Indiana

212 Ind. 67
6 N.E.2d 936

HARKER et al.
v.
EISENHUT.

No. 26703.

Supreme Court of Indiana.

March 15, 1937.


Action between William Harker and others and John H. Eisenhut, executor of the will of George Harker, deceased. From a judgment on exceptions to the executor's final report, the other parties appeal.

Affirmed.

[6 N.E.2d 937]

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...

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8 practice notes
  • Inter State Motor Freight Sys. v. Henry, No. 16533.
    • United States
    • Indiana Court of Appeals of Indiana
    • January 21, 1942
    ...the motion for a new trial for the tendering thereof. Crouse v. Crouse, 1939, 106 Ind.App. 565, 21 N.E.2d 71;Harker v. Eisenhut, 1937, 212 Ind. 67, 6 N.E. 2d 936;W. T. Rawleigh Co. v. Snider, 1935, 207 Ind. 686, 691, 194 N.E. 356;Bolka v. File, 1931, 92 Ind.App. 454, 176 N.E. 108;Ernsting v......
  • Cammack v. Kentucky Home Mut. Life Ins. Co., No. 17071.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 22, 1943
    ...a general bill of exceptions, not made at the time the motion for a new trial was overruled, is void. Harker et al. v. Eisenhut, 1937, 212 Ind. 67, 6 N.E.2d 936;Huntington Brewing Co. v. Miles, 1912, 177 Ind. 109, 96 N.E. 145;Stremmel v. Gaar, Scott & Co., 1911, 176 Ind. 600, 96 N.E. 703;Ta......
  • Allison v. Boles, No. 20669
    • United States
    • Indiana Court of Appeals of Indiana
    • November 13, 1967
    ...especially since the Appellant did not object to it at the proper time. Our Supreme Court in the case of Harker et al. v. Eisenhut (1937) 212 Ind. 67, at page 70, 6 N.E.2d 936, at page 938, "If a party, knowing of a valid objection to a proceeding, neglects to avail himself of it, and stand......
  • Satterblom v. Wasson, No. 16773.
    • United States
    • Indiana Court of Appeals of Indiana
    • May 8, 1942
    ...of the purported bill of exceptions to identify it. The bill of exceptions is not properly in the record. Harker v. Eisenhut, 1937, 212 Ind. 67, 6 N.E.2d 936. It should also be observed that appellants have not complied with the rules of this court in the preparation of their brief, in that......
  • Request a trial to view additional results
8 cases
  • Inter State Motor Freight Sys. v. Henry, No. 16533.
    • United States
    • Indiana Court of Appeals of Indiana
    • January 21, 1942
    ...the motion for a new trial for the tendering thereof. Crouse v. Crouse, 1939, 106 Ind.App. 565, 21 N.E.2d 71;Harker v. Eisenhut, 1937, 212 Ind. 67, 6 N.E. 2d 936;W. T. Rawleigh Co. v. Snider, 1935, 207 Ind. 686, 691, 194 N.E. 356;Bolka v. File, 1931, 92 Ind.App. 454, 176 N.E. 108;Ernsting v......
  • Cammack v. Kentucky Home Mut. Life Ins. Co., No. 17071.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 22, 1943
    ...a general bill of exceptions, not made at the time the motion for a new trial was overruled, is void. Harker et al. v. Eisenhut, 1937, 212 Ind. 67, 6 N.E.2d 936;Huntington Brewing Co. v. Miles, 1912, 177 Ind. 109, 96 N.E. 145;Stremmel v. Gaar, Scott & Co., 1911, 176 Ind. 600, 96 N.E. 703;Ta......
  • Allison v. Boles, No. 20669
    • United States
    • Indiana Court of Appeals of Indiana
    • November 13, 1967
    ...especially since the Appellant did not object to it at the proper time. Our Supreme Court in the case of Harker et al. v. Eisenhut (1937) 212 Ind. 67, at page 70, 6 N.E.2d 936, at page 938, "If a party, knowing of a valid objection to a proceeding, neglects to avail himself of it, and stand......
  • Satterblom v. Wasson, No. 16773.
    • United States
    • Indiana Court of Appeals of Indiana
    • May 8, 1942
    ...of the purported bill of exceptions to identify it. The bill of exceptions is not properly in the record. Harker v. Eisenhut, 1937, 212 Ind. 67, 6 N.E.2d 936. It should also be observed that appellants have not complied with the rules of this court in the preparation of their brief, in that......
  • Request a trial to view additional results

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