Wysor v. Johnson

• Decision Date: 06 February 1892
• Citation: 130 Ind. 270,30 N.E. 144
• Parties: WYSOR et al. v. JOHNSON et al.
• Court: Indiana Supreme Court

130 Ind. 270

30 N.E. 144

WYSOR et al.

v.JOHNSON et al.

Supreme Court of Indiana.

Feb. 6, 1892.

Appeal from circuit court, Delaware county; O. J. LOTZ, Judge.

Action by Johnson and others against Wysor and others. Judgment for plaintiffs. Defendants appeal. Affirmed.

William Walter Orr, for appellants. James N. Templer and John F. Sanders, for appellees.

MCBRIDE, J.

The first three errors assigned in this case relate to rulings of the circuit court in overruling demurrers to pleadings. Having carefully read the pleadings thus questioned, we deem it unnecessary to devote time or space to an extended consideration of the alleged errors. They are, in our opinion, clearly and unmistakably good. Indeed, the manner in which the questions were presented to this court is practically a waiver of error, if there had been any, and we have only examined the pleadings with a view to satisfying ourselves whether or not there is merit in the appeal.

The only remaining error assigned is that the court erred in overruling a motion for a new trial. The record shows the return of the verdict of the jury. December 23, 1885. A motion for a new trial was filed the next day. December 30th, the court made an order giving 60 days' time within which to perfect and file bills of exceptions. On the same day the appellants filed a bill of exceptions, relating to a matter not involved in this appeal. The motion for a new trial was overruled February 19, 1886, and judgment was rendered against the appellants. They excepted, and prayed an appeal to this court, which was granted, but no time was asked or granted for filing a bill of exceptions. On the 16th day of February, 1887, that which purports to be a bill of exceptions, containing the evidence and instructions to the jury, was filed. This was only three days less than a year after the motion for a new trial was overruled and judgment rendered. The bill of exceptions contains the following: “All that part of this bill of exceptions designated as follows, to-wit, commencing with page No. 0 of the long-hand manuscript of the evidence, to page No. 288 thereof, inclusive, and including the instructions to the jury given by the court, and the refusal of the court to give certain instructions asked by the defendants, and their exceptions thereto, were presented to the judge of this court on the 27th day of February, 1886, and was so indorsed, as thereon appears; that said bill, as then presented and indorsed, was left with the official short-hand reporter, and was not again seen by or presented to the judge of this court until the 16th day of February, 1887, at which time all that part of the foregoing bill following page No. 288, to and including page No. 822, has been since attached thereto, and said bill, in the manner and form as above stated, is now, on the 16th day of February, 1887, signed and allowed as the bill of exceptions in this cause. ORLANDO J. LOTZ, Judge Delaware Circuit Court.” If time is given for filing a bill of exceptions, and within that time a proper bill is prepared and presented to the judge, and that fact is shown by the...