Carver v. Carver

44 Ind. 265

• Court: Indiana Supreme Court
• Decided: November 15, 1873
• Status: Published

Opinion

Buskikk, J.

This was a proceeding by the appellee against theiappellants, to enjoin them from the commission of waste upon certain real estate. An interlocutoryorder was granted, to operate until the final hearing of ihe cause, from which the appeal was taken. The error assigned is the granting of such order. The complaint was verified. The court below, in granting the order, acted upon the sworn complaint and certain affidavits submitted by each party. In the absence of the evidence upon which the court acted, we are bound to presume in favor of the action of the court below. If .the affidavits which were read upon the hearing are not in the record, there is nothing for us to review. Turnbull v. Ellis, 35 Ind. 422.

It is quite certain that the affidavits do not constitute a part of the record. The clerk, in making out the transcript, has copied what purports to be the affidavits which were read, and, in copying the bill of exceptions, he has referred to the page of the transcript where they would be found. This does not make the affidavits a part of the record. The clerk should have inserted the affidavits in the places- indicated in the bill of exceptions by the words “here insert.” This question has been recently very fully considered, and we will not re-examine the authorities. Stewart v. Rankin, 39 Ind. 161; Kesler v. Myers, 41 Ind. 543, and the cases there cited.

It results that no question is presented by the record for bur decision.

The judgment is affirmed, with costs.