Franklin Water, Light & Power Co. v. Rouse

35 N.E. 29, 7 Ind. App. 669, 1893 Ind. App. LEXIS 311

• Court: Indiana Court of Appeals
• Decided: October 18, 1893
• Docket: No. 787
• Status: Published

Opinion

Davis, J.

The errors assigned are:

1. The court erred in overruling the demurrers to the first and second paragraphs of the complaint.

2. The court erred in overruling the motion for a new trial.

The first error assigned has been waived by the failure to discuss it.

The reasons assigned in the motion for a new trial are:

1. That the damages assessed by the court in said cause are excessive.

2. The assessment of the amount of recovery is erroneous, being too large.

3. The decision of the court is not sustained by sufficient evidence.

4. The decision of the court is contrary to law.

The cause was tried by the court,’’ and resulted in judgment against appellant for one hundred and seventy-four dollars and forty cents. The motion for new trial was overruled on the 13th of September, 1892, and appellant was granted sixty days in which to file a bill of exceptions. On the 31st day of December, 1892, a bill of exceptions, containing the evidence, was filed. The formal conclusion to the bill of exceptions is as follows: "And the said defendant now tenders his bill of exceptions and prays that the same be signed, sealed and made a part of the record, which is now done, this 30th day of December, 1892. Leonard J. Hackney, Judge.”

The date of the presentation of the bill to the judge does not appear in the bill, but there is an indorsement thereon showing that the bill was received by the judge on the 2d of November, 1892. The time of the filing of the bill of exceptions in such cases is not, under the statute, a matter of vital importance. Section 629, R. S. 1881.

If the bill is presented to the judge within the time allowed, and the date of the presentation is stated in the bill of exceptions, such bill, when filed after the expiration of the time granted, is a part of the record. Section 629, supra; Hormann v. Hartmetz, 128 Ind. 353 (358); McCoy v. Able, 131 Ind. 417 (420); Gish v. Gish, 7 Ind. App. 104.

As said by Judge Elliott, in Hormann v. Hartmetz, supra: ‘ ‘The statute requires that the time of presenting the bill shall be stated in the bill itself, and under this provision it has been repeatedly held that it is not sufficient to indorse the time upon the bill.”

The contention that the evidence in this case is not in the record must prevail, under the authorities cited.

However, before reaching this conclusion, we had carefully read the evidence to which our attention was invited by counsel for appellant, and are of the opinion, if it was treated as being in the record, that the evidence fully sustains the finding and judgment of the trial court.

Filed Oct. 18, 1893.

We find no error in the record that would justify a reversal.

Judgment affirmed, at costs of appellant.

Ross, J., was absent.