Marvin v. Sager
| Decision Date | 10 June 1896 |
| Docket Number | 17,674 |
| Citation | 44 N.E. 310,145 Ind. 261 |
| Parties | Marvin et al. v. Sager |
| Court | Indiana Supreme Court |
From the Porter Circuit Court.
Affirmed.
H. R Robbins, for appellants.
W Johnston, for appellee.
We infer, from certain parts of the transcript, that the appellee sued the appellants to rescind a contract, under the terms of which the plaintiff conveyed certain described land to the appellants, and to recover back certain money.
A separate demurrer to the several paragraphs of the complaint by each of the defendants, was overruled as to some of the paragraphs. The issues joined upon the complaint and answers were tried by the court, resulting in a general finding for the plaintiff, upon which judgment and decree followed, ordering a reconveyance and other relief over the defendant's motions for a new trial. Error is assigned upon the rulings upon the demurrer and in overruling the motion for a new trial.
The only paragraph of the complaint to which appellants contend the court ought to have sustained the demurrer, is one which the court ordered to be numbered 4, though it had been numbered 3, there being already three paragraphs in the complaint before that one was attached thereto.
The transcript shows that the finding of the court was on the original third paragraph, and not on the one subsequently numbered 4. That one is the only paragraph of the complaint to be found in the transcript. The truth is, there is nothing in the transcript to show that there ever was a complaint filed at all in the case, except by inferences from demurrers and answers filed. The transcript does not purport to contain all of the record, nor even the essential parts thereof. It is enough to say that no question is presented as to the sufficiency of the only paragraph of the complaint found in the transcript, because it is shown that the finding is not based on it. Therefore, the ruling upon the demurrer thereto could not affect the substantial rights of the appellants, even though erroneous in the abstract. And unless their substantial rights are injuriously affected, they cannot have a reversal for such an error. R. S. 1894, sections 401, 670 (R. S. 1881, sections 398, 659), and authorities there cited.
One of the grounds specified in the motion for a new trial is that the decision of the court is not sustained by sufficient evidence.
There is in the transcript what purports to be a bill of exceptions, incorporating thereinto the longhand manuscript of the evidence. But it is not clear that the bill is shown, legitimately, to be a part of the record.
On the 29th of June, 1894, ninety days were allowed the defendants in which to present their bill of exceptions.
The learned judge certifies that the bill was presented to him on September 24, 1894, "but not signed for want of time to examine the same," and yet he signed this statement written at the end of the bill. And below that yet, he states that it is "signed and made a part of the record * * * this 21st day of June, 1893," after which his signature is subscribed.
It is impossible for him to have signed it at that date. There must have been some mistake about it. But treating the last date given by the judge as a mistake, and regarding the date of signing as wholly immaterial, as we think we may, under the statute (R. S. 1894, section 641; R. S. 1881, section 629), where the date of presentation is given, as is the case here, we find another difficulty.
The clerk certifies that the longhand manuscript was filed in his office on the 25th day of September, 1894. That is one day after the bill of exceptions was presented to the judge, incorporating thereinto the longhand manuscript. If not filed before it is incorporated into the bill of exceptions, the original cannot be certified here instead of a transcript, as was attempted to be done in this case. Holt v. Rockhill, 143 Ind. 530, 40 N.E. 1090. But treating the longhand manuscript as properly in the record, still it shows that the evidence is not all in the record. There are several places where it is stated that certain deeds were read in evidence and a blank place left in the bill of exceptions to insert them, but they have not been inserted. Again, there is another place where it appears that a copy of one of the missing deeds has been pasted into the transcript since the bill of exceptions was signed.
The evidence is not conclusive that this has been done, but the appellee has produced...
To continue reading
Request your trial