McGinnis v. Boyd

• Decision Date: 07 January 1896
• Docket Number: 17,440
• Citation: 42 N.E. 678,144 Ind. 393
• Parties: McGinnis v. Boyd
• Court: Indiana Supreme Court

42 N.E. 678

144 Ind. 393

McGinnis v. Boyd

No. 17,440

Supreme Court of Indiana

January 7, 1896

Petition for rehearing Overruled March 27, 1896.

From the Lake Circuit Court.

The judgment is affirmed.

T. J Wood, for appellant.

T. S Fancher, for appellee.

OPINION

Hackney, J.

The appellant herein appealed to the circuit court from a survey by the surveyor of Lake county. The judgment below was in confirmation of the survey. The only motion or proceeding in the lower court presenting alleged errors in the trial was a motion for a new trial, assigning as causes therefor that the judgment was contrary to the evidence and that it was contrary to law. It is here assigned as error that the lower court overruled the motion for a new trial; and "Second: The court below erred in entering judgment for appellant." That the second assignment presents no question for review needs but the suggestion that until the circuit court was given some opportunity to pass upon the question no ruling existed to constitute the basis of such an assignment. As to the first assignment, the only possible questions arising and discussed by counsel depend upon the evidence, and the evidence is not properly in the record. The record discloses no entry of the filing, in the lower court of the longhand manuscript of the evidence. That it should have been filed was indispensable. R. S. 1894, section 640; Prather v. Prather, 139 Ind. 570, 39 N.E. 310. Another objection to the consideration of the evidence is that the record discloses upon its face that, notwithstanding the statement of the bill of exceptions, that it contains "all the evidence given in the cause," it does not contain all of the evidence. In the body of the original bill of exceptions, which follows the papers in the cause, as a part of the transcript, it is shown that "thereupon the plaintiff read the survey made by George Fisher, as found in book 2, at page 8, in evidence, and the same is as follows, to-wit." So much of the transcript is typewritten, and then follows, written with pen and ink, a statement which, upon its face not only implies that it was written in the bill after it was signed by the judge, by its reference to parts of the transcript preceding the bill, but it discloses the facts that the "survey," read in evidence, was not in the bill of exceptions when it was signed, and that it is now in the bill as a part of the record. The statement is as follows: "Which fully appears on pages 2, 3, 4, 5, 6, 7, 8, 9 and 10 of transcript, and it is agreed that the showing on these pages was the survey appealed from, and that the same is a true and complete copy of the record as appears on page 8, book 2, surveyor's office." The alleged agreement is not signed by counsel and is so manifestly not a part of the proceeding at the trial, but came into the record after the transcript containing the bill was prepared, we are unable to accept it as a reference to a document already a proper part of the record. The bill does not purport to incorporate the survey by reference, under R. S. 1894, section 638, and the alleged agreement, treated separately, is not...