Marvin v. Sager

• Decision Date: 10 June 1896
• Citation: 44 N.E. 310,145 Ind. 261
• Court: Indiana Supreme Court
• Parties: MARVIN et al. v. SAGER.

145 Ind. 261

44 N.E. 310

MARVIN et al.

v.SAGER.

Supreme Court of Indiana.

June 10, 1896.

Appeal from circuit court, Porter county; J. H. Gillett, Judge.

Action by Chauncey A. Sager against William T. Marvin and others. There was a judgment for plaintiff, and defendants appeal. Affirmed.

H. A. Robbins, for appellants. Wm. Johnson, for appellee.

McCABE, J.

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 defendants' motion 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 inference 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. Rev. St. 1894, §§ 401, 670 (Rev. St. 1881, §§ 398, 658), 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 therein 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, 90 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 was 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 (Rev. St. 1894, § 641; Rev. St. 1881, § 629), as we think we may, under the statute, 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 therein 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 (Ind. Sup.) 40 N. E. 1090. But, treating the longhand manuscript as properly in the record, still it shows that the evidence is not all...