Holt v. Rockhill
| Decision Date | 12 June 1895 |
| Docket Number | 17,290 |
| Citation | 40 N.E. 1090,143 Ind. 530 |
| Parties | Holt et al. v. Rockhill, by Next Friend |
| Court | Indiana Supreme Court |
Petition for Rehearing Overruled January 28, 1896.
From the Huntington Circuit Court.
Judgment affirmed.
Holstein & Barrett, Spencer & Branyan and Milligan & Cook for appellants.
Morris Bell, Barrett & Morris, Watkins and J. C. Branyan, for appellee.
The appellee, sued the appellants to set aside the will of her grandmother, Ann M. Holt, deceased. The issues formed upon the complaint were tried by a jury, resulting in a verdict for the plaintiff, the appellee, upon which she had judgment setting aside the will. It is assigned for error that the circuit court overruled appellants' motion for a new trial. This is the only assignment of error. The correctness of the court's ruling in refusing the new trial depends entirely upon the evidence. And the appellee contends that the evidence is not in the record. Exceptions appear in what purports to be the bill of exceptions to the giving and refusal to give certain instructions also set out in said bill of exceptions. The motion for a new trial was overruled on March 30, 1894, and ninety days time was allowed the appellants in which to file a bill of exceptions, and thereupon on the same day the judgment was rendered.
On April 26, 1894, the bill of exceptions was filed in open court. That was within the time allowed.
There is much in the transcript before us indicating that the evidence embodied in the bill of exceptions is the original longhand manuscript of the shorthand report, and its incidents taken by the official reporter at the trial. But there is nothing to show that such longhand manuscript was filed in the clerk's office. As already observed, the transcript shows that the bill of exceptions incorporating such manuscript was filed. But the statute provides that: "The original longhand manuscript of the evidence, * * may be filed with the clerk of the court by the party entitled to the use of the same; and in case of an appeal, * * it shall be the duty of the clerk, if requested to do so by said party, to certify the said original manuscript, * * when the same shall be incorporated in a bill of exceptions, * * * instead of a transcript thereof." Burns R. S. 1894, section 1476 (R. S. 1881, section 1410). It is the said original manuscript of evidence that was filed in the clerk's office by the party entitled to use the same, that the clerk is authorized to certify to this court after it is incorporated in a bill of exceptions, instead of a transcript thereof.
A strict compliance with the statute, therefore, requires that such longhand manuscript be filed in the clerk's office before it is incorporated in the bill of exceptions, and that fact must be shown in the transcript in the bill of exceptions or in some other appropriate way. This would be construing the statute as mandatory and not directory merely as to the filing of the longhand manuscript. It is unnecessary to the decision of this case that we determine whether the provision in question is mandatory or directory merely. Because it clearly appears, and it is conceded by the appellants' learned counsel that the original bill of exceptions is certified here instead of a transcript thereof. And it further clearly appears that the bill of exceptions incorporates more than the...
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