Rigler v. Rigler
| Decision Date | 02 November 1889 |
| Docket Number | 14,455 |
| Citation | 22 N.E. 776,120 Ind. 431 |
| Parties | Rigler v. Rigler et al |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Dec. 12, 1889.
From the Vigo Circuit Court.
The judgment is reversed, with costs, with directions to sustain the demurrer to the complaint.
C. F McNutt, J. G. McNutt, F. A. McNutt, T. W. Harper, S. B Davis, S. C. Davis and G. M. Davis, for appellant.
W Eggleston, E. Reed, B. E. Rhoads, E. F. Williams and T. W. Haymond, for appellees.
This was a proceeding to review a judgment of the Vigo Circuit Court. It is charged in the complaint for review that there is manifest error apparent upon the face of the record of the proceedings sought to be reviewed, in that the court erred in overruling the plaintiffs' motion for a new trial, to which ruling it is alleged the plaintiffs excepted, and tendered a bill of exceptions containing all the instructions and evidence, which bill, it is averred, was signed by the court and made a part of the record. What purports to be the bill of exceptions thus alleged to have been made a part of the record in the original proceeding, together with copies of the pleadings and judgment, are made a part of the complaint. The judgment was reviewed and set aside for alleged error in admitting certain testimony over the plaintiffs' objection. The propriety of the ruling of the court in holding the complaint to review sufficient on demurrer, depends upon whether or not the bill of exceptions, which purports to contain the evidence in the original case, was presented to the judge and filed so as in fact to become a part of the record.
The settled rule is, that a complaint to review a judgment for error apparent on the record will only lie for causes which would have been available on appeal. Baker v. Ludlam, 118 Ind. 87, 20 N.E. 648.
The motion for a new trial in the original case was overruled on the 18th day of May, 1887, and ninety days' time was given within which to present bills of exceptions for the signature of the presiding judge. The bill of exceptions containing the evidence was signed and filed on the 24th day of September, 1887. There is nothing in or about the bill to indicate when it was presented to the presiding judge, but attached to it is a certificate signed by the judge as follows: "Signed this 24th day of September, 1887, together with the finding of facts, upon the affidavits hereto attached and made a part hereof."
The affidavits referred to present what is claimed to be an excuse for not presenting the bill of exceptions to the presiding judge within the time limited. They show that on the 6th day of August, ten days before the expiration of the time limited for presenting the bill, the judge who presided at the trial, having no information that a bill of exceptions was being prepared to be presented to him, left his home in Terre Haute and went to Madison, Wisconsin, and that he did not return until the 30th day of the month. The absence of the judge is relied on as an excuse for not presenting the bill of exceptions until after the time had expired.
Without deciding whether or not it would be competent in any case to show by affidavits an excuse for not presenting a bill of exceptions, as the statute requires, we are quite sure that the affidavits show no excuse in the present case which can be considered by an appellate tribunal. Underwood v. Hossack, 40 Ill. 98, relied on to sustain the bill, supports the opposite view. In that case the presiding judge actually signed and filed the bill, and the Supreme Court held that it would be presumed, until the contrary appeared, that it was presented to him for his signature within the time. "But," the court added "if the case were different, as a matter of fact, we could not help the plaintiff under this motion, as this court can not direct that to be made a matter of...
To continue reading
Request your trial