Taylor v. Schradsky 

• Decision Date: 07 March 1912
• Docket Number: No. 21,787.,21,787.
• Citation: 178 Ind. 217,97 N.E. 790
• Parties: TAYLOR et al. v. SCHRADSKY et al.
• Court: Indiana Supreme Court

178 Ind. 217

97 N.E. 790

TAYLOR et al.

v.SCHRADSKY et al.¹

No. 21,787.

Supreme Court of Indiana.

March 7, 1912.

Appeal from Probate Court, Marion County; Frank B. Ross, Judge.

Action by Hannah Taylor and others against Hyman Schradsky and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Walker & Hollett, Vincent G. Clifford, Russell B. Harrison, and Taylor & Fatt, for appellants. Mitchel S. Meyberg and Henry N. Spaan, for appellees.

MORRIS, C. J.

Appellants brought an action against appellees in the Marion probate court to contest the will of Bennett Barnett. Trial by jury. Verdict and judgment for appellees.

The errors assigned by appellants are the overruling of motion for a new trial, for a venire de novo, for judgment for plaintiffs on the verdict, and to modify the judgment.

[1] Appellants have waived their right to a consideration of the action of the trial court in overruling all the above motions except the one for a new trial by failing to comply with rule 22 of this court. No attempt has been made, in appellants' brief, to set out the above motions, or the substance thereof, except the motion for a new trial, and consequently it alone will be considered. Among the reasons for a new trial was the alleged erroneous exclusion of certain offered testimony of Dr. Woodard; also, the alleged erroneous admission in evidence of certain testimony of Mayer Blessing. At the threshold of the consideration of the above alleged errors, we are confronted with the proposition of appellees that the evidence is not properly in the record.

[2] On April 22, 1910, appellant's motion for a new trial was overruled, and 90 days were given in which to file a bill of exceptions. On July 22, 1910, appellants in vacation tendered to the judge of the probate court their bill of exceptions, containing the offered testimony of Dr. Woodard, and the court's action with reference thereto, and the testimony of Mayer Blessing, and the court's action on appellant's objections to the admission thereof. This bill of exceptions was on the day it was tendered signed, sealed, and filed. As the bill of exceptions was not presented to the judge of the trial court within time fixed, it is not properly in the record, and its contents cannot be considered. Goldthait v. Cincinnati, etc., R. Co., 143 Ind. 356, 42 N. E. 687.

[3] Counsel for appellants in oral argument admitted that the bill of exceptions was presented too late, but insist that because the offered testimony of Dr. Woodard, and the evidence given by Mayer Blessing are set out in the motion for a new trial, the court should consider the same.

Statements in a motion for a new trial of alleged errors occurring at the trial cannot be accepted as true by this court, unless verified by the record. As the bill of exceptions containing the matters complained of is not in the record, no question in relation to the admission or exclusion of evidence is here presented for review. Siebert v. State, 95 Ind. 471, 477;Heckelman v. Rupp, 85 Ind. 286;Graeter v. Williams, 55 Ind. 461;Hyatt v. Clements, 65 Ind. 12.

The fifth reason assigned for a new trial was “that the court erred in giving to the jury instructions 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, and 22 on its own motion.” To the above is added the following recital: “To which instructions each severally and separately the plaintiffs excepted, as shown by indorsement on said written instructions filed herein.”

In their brief appellants' counsel contend that the court erred in...