Richwine v. Jones

• Decision Date: 08 January 1895
• Docket Number: 17,060
• Parties: Richwine et ux. v. Jones
• Court: Indiana Supreme Court

39 N.E. 460

140 Ind. 289

Richwine et ux. v. Jones

No. 17,060

Supreme Court of Indiana

January 8, 1895

From the Hamilton Circuit Court.

The judgment is affirmed.

J. A Roberts and M. Vestal, for appellants.

T. J Kane and R. K. Kane, for appellee.

OPINION

Howard, J.

This was an action brought by appellee to reform deeds and to quiet title to real estate.

Appellants were at first defaulted and judgment was rendered for appellee as prayed for.

Afterwards the default was set aside, and the appellants answered. There was a change of venue from the regular judge, and the cause was submitted to a special judge who made a finding and entered judgment, as before, for appellee.

After the overruling of a motion for a new trial for cause, and the granting of an appeal to this court, a motion was made for a new trial as of right.

A new trial as of right having been awarded, the honorable judge below was called to try the cause, which was thereupon submitted to the court. That trial also resulted in a finding and decree for the appellee, and this appeal followed, after the overruling of a motion for a new trial.

The only error assigned is the overruling of the motion for a new trial.

Counsel for appellee first contend that the bill of exceptions is not properly in the record for failure of a sufficient certificate by the clerk.

The clerk's certificate shows that the "transcript contains complete copies of all the papers and entries in said cause, and also the original longhand manuscript of the evidence made by the reporter." Nothing is said as to a bill of exceptions. It would seem that the certificate is defective.

There ought to be a record entry showing the filing of the bill of exceptions, also the filing of the longhand manuscript and that the same is embodied in the bill of exceptions; or, at the least, the certificate of the clerk should show such filings and the incorporation of the manuscript in the bill. It is an error to treat the longhand manuscript itself as a bill of exceptions. Marshall v. State, ex rel., 107 Ind. 173, 6 N.E. 142; Fahlor v. State, 108 Ind. 387, 9 N.E. 297; Wagoner v. Wilson, 108 Ind. 210, 8 N.E. 925.

We are of opinion, moreover, that if we were to consider the evidence as set out in the transcript, we should find nothing therein sufficient to require a reversal of this case.

The appellant, who had for over a year resided in the near neighborhood, purchased the lot in question, after negotiating for the same during a period of two or three weeks previous. The lot, upon which there was a house, was enclosed by a fence which had been...