McMurran v. Hannum

Citation113 N.E. 238,185 Ind. 326
Decision Date28 June 1916
Docket NumberNo. 22402.,22402.
PartiesMcMURRAN et al. v. HANNUM.
CourtSupreme Court of Indiana

185 Ind. 326
113 N.E. 238

McMURRAN et al.
v.
HANNUM.

No. 22402.

Supreme Court of Indiana.

June 28, 1916.


Appeal from Circuit Court, Pike County; John L. Bretz, Judge.

Action by Francis T. McMurran and others against Mattie Hannum to prevent the probate of the will of Marshall McMurran. Judgment for defendant, and plaintiffs appeal. Affirmed.

[113 N.E. 239]


Walker & Walker, of Evansville, Charles N. Brown, of Madison, Wis., and Richardson & Taylor, of Petersburg, for appellants. G. V. Menzies, of Mt. Vernon, James M. House, of Vincennes, Lane B. Osborn, of Evansville, and David Corn and Frank Ely, both of Petersburg, for appellee.

COX, C. J.

This appeal is from a judgment of the lower court ordering a probate of the will of Marshall McMurran, deceased, pursuant to the verdict on issues formed on objections filed to the probate under the provisions of section 3153, Burns 1914.

The only error well assigned is the first which asserts that the trial court erred in overruling appellants' motion for a new trial. The second and third assignments of error which challenge the sufficiency of the evidence to sustain the verdict are not proper independent assignments of error. They are matters which must be presented on appeal to this court through the medium of a motion for a new trial. The cause for a new trial on which claims of error to compel a reversal are based are the insufficiency of the evidence in fact and in law to sustain the verdict, the admissions of numerous items of evidence over appellants' objection, the exclusion of certain evidence offered by appellants, the giving of instructions by the court, and its refusal to give instructions requested by appellants.

In approaching a consideration of the claims of error so advanced by appellant we are met by contentions in behalf of appellee that neither the record presented to this court nor the briefs for appellants properly present for review any of the rulings asserted to be erroneous.

The rule that this court will not consider an assignment of error which requires the determination of the question whether the evidence is sufficient to sustain a verdict or finding unless all of the evidence given in the cause is brought before the court is so well settled and has been so many times announced that there is no need to cite cases which have declared the rule.

There is in the transcript now before us what was intended to be the court stenographer's report of the evidence given in the cause incorporated into a bill of exceptions. It appears from the record that appellants' motion for a new trial was overruled November 23, 1912, in the November term of the trial court of that year. To this ruling appellants excepted and were given 90 days in which to file a bill of exceptions taken on rulings which were made the basis of their motion for a new trial, the overruling of which motion is assigned as error. This number of days gave them until February 15, 1913, to present their bill for settlement by the trial court. The transcript which was filed in this court May 9, 1913, contains the stenographer's longhand report of the evidence taken by her which closes with a recital, “and this was all the testimony introduced in this cause.” Following this recital at the close of the report there is a certificate made by the reporter in substance that the foregoing contained a full and correct report of all the evidence given in the cause and of all the rulings of the court on the evidence and exceptions taken thereto. There is then appended to this report the following certificate of the trial judge:

“And now comes the plaintiffs, objectors in the above-entitled cause and on the 6th day of February, 1913, tenders and presents to the Honorable John L. Bretz, sole judge of the said court, this their bill of exceptions, and prays that the same may be signed, sealed and made a part of the record. John L. Bretz, Judge.

And now on this 10th day of March, 1913, this bill of exceptions is signed, sealed and made a part of the record.

John L. Bretz, Judge.”

It is to be observed that neither in what purports to be the bill of exceptions containing the evidence nor in the certificate of the judge does it appear that all the evidence given in the cause is included in what was intended for a bill of exceptions. It is true that the stenographer's certificate does contain a statement to that effect, but this certificate is only surplusage and as such it cannot be considered. Such a certificate constitutes no part of the bill and adds nothing to it. Parker v. State (1915) 183 Ind. 130, 108 N. E. 517, and cases there cited; Wagner v. Wagner (1915) 183 Ind. 528, 109 N. E. 47;Ehrisman v. Scott (1892) 5...

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