King v. Marsh

37 Ind. 389

• Court: Indiana Supreme Court
• Decided: November 15, 1871
• Status: Published

Opinion

Pettit, J.

In this case there is no question raised on the pleadings, nor is there any error assigned for any ruling on them. There was no motion for a new trial in the court below, nor is the overruling of such motion assigned for error here. The only questions raised are as to the report of a master. That report is no part of the record, unless made so by bill of exceptions, which is not done; and we cannot, therefore, take any notice of its imperfections, it being used as mere evidence on which the court finds and renders Its judgment. 2 G. & H. 273, sec. 559. No motion having been made for a new trial in the court below, no-evidence Is, or can be, properly in the record, and we cannot, therefore, say that the court erred in its judgment.

The following cases, with many others that might be cited in our own reports, fully sustain us in this ruling. Doe v. Herr, 8 Ind. 23; The State v. Swarts, 9 Ind. 221; Thompson v. Shaefer, 9 Ind. 500; Gray v. Stiver, 24 Ind. 174.

G. V. Homk, y. H. Stotsenburg, T. M. Brown, and W. W. Tally, for appellants. D. C. Anthony and W. March, for appellee.

The judgment is affirmed, at the costs of the appellants.

*

Petition for a rehearing overruled.