Zeplovitz v. Folk
| Decision Date | 31 October 1935 |
| Docket Number | 26396 |
| Citation | 197 N.E. 915,209 Ind. 408 |
| Parties | ZEPLOVITZ et al. v. FOLK et al |
| Court | Indiana Supreme Court |
Suit by Harry E. Folk, etc., and others against Isidore Zeplovitz and others. From an unsatisfactory order, defendants appeal and the named plaintiff moves to dismiss the appeal.
Appeal dismissed.
Appeal from Superior Court, Lake County; Harold L. Strickland Judge.
John M Stinson and Alvin B. Lowe, both of Hammond, for appellants.
Bomberger, Peters & Morthland, of Hammond, for appellees.
This is an appeal from an interlocutory order appointing a receiver for certain real estate, which order was entered in a proceeding ancillary to a suit brought by the plaintiff to foreclose mortgage upon the real estate. The order appealed from was entered on October 26, 1933, pursuant to notice and hearing, at which hearing the appellants Zeplovitz and Zeplovitz appeared; and evidence, both documentary and oral, was received. On November 3, 1933, the appellants filed an appeal bond in the trial court, and the court made an entry as of October 31, 1933, nunc pro tunc, showing that the defendants Zeplovitz and Zeplovitz prayed an appeal. On November 4, 1933, the appellants tendered their special bill of exceptions to the trial court for examination, approval and filing. This special bill of exceptions consisted of appellants' statement of the alleged errors committed by the trial court in the reception of evidence at the hearing and in its decision rendered upon the hearing, and all of the rulings therein complained of are set out in the assignment of errors.
Appellee Harry E. Folk, as receiver of the First Trust & Savings Bank of Hammond, has filed a motion to dismiss this appeal upon the grounds (a) that no question is presented for the reason that the evidence has not been made a part of the record on appeal, whereas the appeal is wholly based upon alleged errors which are dependent for their determination upon the evidence; and (b) that appellants' brief has not been prepared in conformity with the rules of this court.
On the last day of the time allowed by statute for an appeal, [1] the appellants filed a transcript in this court. This transcript did not include a bill of exceptions containing the evidence. It does include what purports to be a complete copy of the record made in the trial court; but there is no entry showing that the trial court was requested to extend, or had extended, the time for presenting to it and filing a bill of exceptions containing the evidence. A bill of exceptions containing the evidence was not presented to the trial court for approval until after the end of the term at which the interlocutory order was made and after the expiration of the time allowed for appeal. What purports to be a bill of exceptions No. 2, containing the evidence, was filed with the clerk of this court on November 23, 1933, more than ten days after entry of the interlocutory order appealed from and after the term of court at which that order was made. It is not accompanied by an order book entry over the certificate of the clerk of the trial court showing that it was ever filed in the cause in that court after having been approved, signed, and ordered filed by the trial court.
While an original signed order of the court, which accompanied this purported bill of exceptions No. 2, recited that the bill of exceptions was presented to the trial court 'within the time allowed by the court for filing their Bill of Exceptions,' such a statement does not have the effect of showing that time was allowed. There must be an order book entry showing the granting of time for presenting a bill of exceptions. Gray v. McLaughlin (1921) 191 Ind. 190 192, 131 N.E. 518, 519, and ...
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