Davidson v. Davidson

Indiana Court of Appeals

Davidson v. Davidson

90 N.E.2d 821, 120 Ind. App. 253, 1950 Ind. App. LEXIS 146

CourtIndiana Court of Appeals

DecidedMarch 13, 1950

Docket17,957

StatusPublished

Cited by10 cases

This text of 90 N.E.2d 821 (Davidson v. Davidson) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Davidson v. Davidson, 90 N.E.2d 821, 120 Ind. App. 253, 1950 Ind. App. LEXIS 146 (Ind. Ct. App. 1950).

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Opinions

Wiltrout, J.

— Appellee was granted an absolute divorce from appellant, and this appeal followed. Appellant assigns as error the overruling of her motion for a new trial.

Appellant urges that appellee did not meet the requirements of the statute as to proof of residence by at least two witnesses who are resident householders of the state. Section 3-1203, Burns’ 1946 Replacement. Such proof of residence does not appear in the bill of exceptions. It is certified that the bill of exceptions contains all of the evidence.

The order book entries recite that evidence was heard on October 24, 1947, and on four later dates. The bill of exceptions recites that evidence was heard on the four later dates only. Appellee takes the position that upon this state of the record we must assume that evidence was heard on October 24, 1947, which evidence is not in the bill of exceptions.

It is the general rule that a bill of exceptions imports absolute verity. “If a matter must be shown by a bill of exceptions the recitals of the bill which operates to bring the facts distinctly to the attention of the judge who signs it will control a conflicting recital contained in a prior order book [255]*255entry.” Indianapolis Dairymen’s Co-Op. v. Bottema (1948), 226 Ind. 260, 79 N. E. 2d 409; See also: Avery v. Nordyke & Marmon Co. (1905), 34 Ind. App. 541, 70 N. E. 888. From this state of the record we must assume that all the evidence is contained in the bill of exceptions.

There was a failure of the statutory proof as to appellee’s residence. Such proof is mandatory and a failure thereof requires a reversal of the judgment. State ex rel. Martin v. Eby, Judge (1947), 225 Ind. 283, 73 N. E. 2d 767; Adkins v. Adkins (1947), 117 Ind. App. 189, 70 N. E. 2d 750; Berghean v. Berghean (1943), 113 Ind. App. 412, 48 N. E. 2d 1001.

Judgment reversed, with instructions to sustain appellant’s motion for new trial and for further proceedings not inconsistent with this opinion.

Note. — Reported in 90 N. E. 2d 821.

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Wiltrout, J.

— Appellee was granted an absolute divorce from appellant, and this appeal followed. Appellant assigns as error the overruling of her motion for a new trial.

Appellant urges that appellee did not meet the requirements of the statute as to proof of residence by at least two witnesses who are resident householders of the state. Section 3-1203, Burns’ 1946 Replacement. Such proof of residence does not appear in the bill of exceptions. It is certified that the bill of exceptions contains all of the evidence.

The order book entries recite that evidence was heard on October 24, 1947, and on four later dates. The bill of exceptions recites that evidence was heard on the four later dates only. Appellee takes the position that upon this state of the record we must assume that evidence was heard on October 24, 1947, which evidence is not in the bill of exceptions.

It is the general rule that a bill of exceptions imports absolute verity. “If a matter must be shown by a bill of exceptions the recitals of the bill which operates to bring the facts distinctly to the attention of the judge who signs it will control a conflicting recital contained in a prior order book [255]*255entry.” Indianapolis Dairymen’s Co-Op. v. Bottema (1948), 226 Ind. 260, 79 N. E. 2d 409; See also: Avery v. Nordyke & Marmon Co. (1905), 34 Ind. App. 541, 70 N. E. 888. From this state of the record we must assume that all the evidence is contained in the bill of exceptions.

There was a failure of the statutory proof as to appellee’s residence. Such proof is mandatory and a failure thereof requires a reversal of the judgment. State ex rel. Martin v. Eby, Judge (1947), 225 Ind. 283, 73 N. E. 2d 767; Adkins v. Adkins (1947), 117 Ind. App. 189, 70 N. E. 2d 750; Berghean v. Berghean (1943), 113 Ind. App. 412, 48 N. E. 2d 1001.

Judgment reversed, with instructions to sustain appellant’s motion for new trial and for further proceedings not inconsistent with this opinion.

Note. — Reported in 90 N. E. 2d 821.

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90 N.E.2d 821, 120 Ind. App. 253, 1950 Ind. App. LEXIS 146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davidson-v-davidson-indctapp-1950.

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