Great Council v. Green

100 N.E. 472, 52 Ind. App. 198, 1913 Ind. App. LEXIS 36

• Court: Indiana Court of Appeals
• Decided: January 22, 1913
• Docket: No. 7,692
• Status: Published

Opinion

Adams, J.

The errors presented by the assignment in this appeal and relied on for reversal of the judgment require an examination of the evidence. Appellees insist that the sufficiency of the evidence cannot be considered, for the reason that the bill of exceptions does not conclude with the statement “and this was all the evidence given in said cause,” and the certificate of the trial judge does not state that the bill of exceptions contains all the evidence given in the cause. Appellees’ position is fully supported by authority.

1. 2. It is well settled that this court cannot consider the sufficiency of the evidence to sustain the decision, unless it shall affirmatively appear, over the signature of the trial judge, that the bill of exceptions contains all the evidence. The bill of exceptions preceding the formal conclusion should contain the words: “And this was all the evidence given in said cause.” Petree v. Fielder (1891), 3 Ind. App. 127, 131, 29 N. E. 271; Ohio, etc., R. Co. v. Smith (1892), 5 Ind. App. 36, 39, 31 N. E. 371; Haynes, Spencer & Co. v. Erk (1893), 6 Ind. App. 332, 335, 33 N. E. 637; Miller v. Fuller (1898), 21 Ind. App. 254, 256, 52 N. E. 101; Brickley v. Weghorn (1880), 71 Ind. 497, 499; Seig v. Long (1880), 72 Ind. 18; Beatty v. O’Connor (1886), 106 Ind. 81, 84, 5 N. E. 880; Kleyla v. State, ex rel. (1887), 112 Ind. 146, 13 N. E. 255; Guenther v. State (1895), 141 Ind. 593, 595, 41 N. E. 13.

The judgment is affirmed.

Note.—Reported in 100 N. E. 472. See, also, under (1) 3 Cyc. 167. As to the indication,' by the filing of a bill of exceptions, that it has been allowed by the court, see 15 Am. St. 297.