Anderson v. Anderson

40 N.E. 131, 141 Ind. 567, 1895 Ind. LEXIS 315

• Court: Indiana Supreme Court
• Decided: April 10, 1895
• Docket: No. 17,221
• Status: Published

Opinions

Jordan, J.

Appellant was made a party defendant in the lower court to an action by appellee to foreclose a mortgage against the mortgagees, to answer as to his interest in and to the mortgage and note in suit.

Upon the issues joined between the appellant and appellee there was a trial, which resulted in the court adjudging that the former had no interest or title in or to the note and mortgage in question.

Appellant unsuccessfully moved for a new trial upon the alleged reasons that the decision was not sustained by sufficient evidence and that the same was contrary to law. The overruling of this motion is the only error assigned.

The judgment was rendered and the motion for a new trial overruled on the 27th day of September, 1892, being the twentieth judicial day of the September term of the Ripley Circuit Court.

A bill of exceptions purporting to contain the evidence in the cause was signed by the trial judge on December 22, 1892, and filed on the 26th of that month.

Upon an examination of the record it does not appear that appellant was granted special leave by the court beyond the September term, at which his motion for a new trial was overruled, to file this bill of exceptions, as provided by section 626, R. S. 1881; section 638, R. S. 1894. This court judicially knows that the September term of the Ripley Circuit Court did not extend beyond the month of October, and hence time beyond the term not having been granted, there was no authority, under the statute, for appellant to file the bill of exceptions in question after the close of the September term of court. Therefore, it follows that the evidence is not properly before us, and no question as to its sufficiency is presented for the consideration of this court.

Filed April 10, 1895.

Judgment is affirmed, at the cost of appellant.