State ex rel. Wahl v. Marsh

• Citation: 21 N.E. 543,119 Ind. 394
• Decision Date: 16 May 1889
• Docket Number: 13,717
• Parties: The State, ex rel. Wahl, v. Marsh et al
• Court: Supreme Court of Indiana

21 N.E. 543

119 Ind. 394

The State, ex rel. Wahl, v. Marsh et al

No. 13,717

Supreme Court of Indiana

May 16, 1889

Petition for a Rehearing Overruled June 19, 1889.

From the Clark Circuit Court.

Judgment affirmed, with costs.

J. B. Meriwether and M. Z. Stannard, for appellant.

J. H. Stotsenburg, for appellees.

OPINION

Olds, J.

This is an action on a guardian's bond. The only error assigned is the overruling of the appellant's motion for a new trial. The causes for a new trial set forth in the motion are, that "the finding of the court is contrary to the evidence," and "the finding of the court is contrary to law."

By the bill of exceptions it appears that the files and judgment of Applegate v. H. R. Carr et al., and a note and mortgage were introduced in evidence, and it further appears that the files are lost; and the clerk of the Clark Circuit Court, at the request of the attorneys for appellant, inserted in the bill of exceptions the entry on the judgment docket in a case of Rebecca Applegate v. Hezekiah R. Carr et al., and the clerk certifies to the record in the case that "the above and foregoing is a full, true and complete transcript of all pleadings filed pertaining to said cause, except the papers in an action wherein Rebecca Applegate was plaintiff, and Hezekiah R. Carr et al. were defendants, referred to in the bill of exceptions, and which said files are missing and can not be found in my office."

From this it affirmatively appears that the bill of exceptions does not contain all the evidence, and the case can not be considered on the evidence. French v. State, ex rel., 81 Ind. 151; Shimer v. Butler University, 87 Ind. 218; Collins v. Collins, 100 Ind. 266; Hendrix v. Rieman, 90 Ind. 119; Thames Loan, etc., Co. v. Beville, 100 Ind. 309; Lawrenceburgh, etc., Co. v. Hinke, ante, p. 47.

There is no question presented to this court by the record.

Judgment affirmed, with costs.