Byers v. Hickman

Indiana Supreme Court

Byers v. Hickman

36 Ind. 359

CourtIndiana Supreme Court

DecidedNovember 15, 1871

StatusPublished

Cited by6 cases

This text of 36 Ind. 359 (Byers v. Hickman) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Byers v. Hickman, 36 Ind. 359 (Ind. 1871).

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Opinion

Downey, J.

Several questions of interest are discussed [360]*360by counsel, in neatly prepared printed briefs, in this case, but we cannot consider any of them.

R. S. Robertson, for appellant. ' W. G. Colerick and D. H. Colerick, for appellees.

The first error assigned is, that the court improperly sustained the defendants’ demurrer to the original complaint. But this cannot be assigned for error as there was an amended complaint filed by the plaintiff covering the same ground, which was held sufficient, and on which the case was tried. Indeed the original complaint, in such a case, forms no part of the record, and should not be incorporated into it by the clerk. 2 G. & H. 273, sec. 559; Downs v. Downs, 17 Ind. 95.

It is also assigned for error that the circuit court improperly refused a new trial on the motion of the plaintiff. The final judgment was rendered on the 30th day of May, 18705 sixty days were givén in which to file the bill of exceptions, and it was filed on the 30th day of July, 1870.

According to the recognized mode of computing time in such cases, we should exclude the 30th day of May, on which the judgment was rendered, and begin the count with the 31st day of that month, we then have one day in May, thirty in June, and thirty of July, counting the day on.which the bill of exceptions was filed, which the rule requires us to do, making sixty-one days. This was not in time.

The proceeding was instituted to set aside a judgment, alleged to have been rendered without notice. The parol evidence is in the bill of exceptions, but the documentary evidence is not. The clerk has copied, outside of the bill of exceptions, certain papers, but, if the bill of exceptions was filed in time, we must hold that these papers are not before us. It does not appear, therefore, from the evidence in the bill of exceptions, that any such judgment was ever rendered against the plaintiff, as that of which he complains.

The judgment is affirmed, with costs.

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Downey, J.

Several questions of interest are discussed [360]*360by counsel, in neatly prepared printed briefs, in this case, but we cannot consider any of them.

R. S. Robertson, for appellant. ' W. G. Colerick and D. H. Colerick, for appellees.

The first error assigned is, that the court improperly sustained the defendants’ demurrer to the original complaint. But this cannot be assigned for error as there was an amended complaint filed by the plaintiff covering the same ground, which was held sufficient, and on which the case was tried. Indeed the original complaint, in such a case, forms no part of the record, and should not be incorporated into it by the clerk. 2 G. & H. 273, sec. 559; Downs v. Downs, 17 Ind. 95.

It is also assigned for error that the circuit court improperly refused a new trial on the motion of the plaintiff. The final judgment was rendered on the 30th day of May, 18705 sixty days were givén in which to file the bill of exceptions, and it was filed on the 30th day of July, 1870.

According to the recognized mode of computing time in such cases, we should exclude the 30th day of May, on which the judgment was rendered, and begin the count with the 31st day of that month, we then have one day in May, thirty in June, and thirty of July, counting the day on.which the bill of exceptions was filed, which the rule requires us to do, making sixty-one days. This was not in time.

The proceeding was instituted to set aside a judgment, alleged to have been rendered without notice. The parol evidence is in the bill of exceptions, but the documentary evidence is not. The clerk has copied, outside of the bill of exceptions, certain papers, but, if the bill of exceptions was filed in time, we must hold that these papers are not before us. It does not appear, therefore, from the evidence in the bill of exceptions, that any such judgment was ever rendered against the plaintiff, as that of which he complains.

The judgment is affirmed, with costs.

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36 Ind. 359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/byers-v-hickman-ind-1871.

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