Mattinger v. Lake Shore & Michigan Southern Railway Co.

19 N.E. 733, 117 Ind. 136, 1889 Ind. LEXIS 125

• Court: Indiana Supreme Court
• Decided: January 26, 1889
• Docket: No. 13,472
• Status: Published

Opinion

Berkshire, J. —

This suit was instituted before a justice of the peace. The complaint, when the cause was tried, was in one paragraph.

This is an action against the appellee by the appellant, depending upon what is known as the “ Stock Law.”

The complaint charges that, on the 22d day of July, 1884, the defendant was a corporation, operating a line of railroad which passed through the county of DeKalb, in the State of Indiana, and that on said day, at said county, its employees, operating a locomotive engine upon its said line of road, ran the same over a cow belonging to the appellant, thereby killing her; that she was of the value of sixty-five dollars, and that at the point where she went upon the railroad track it was not securely fenced.

The case was tried by a jury, and a special verdict returned. The appellant filed a motion for a new trial, which was overruled by the court, and a judgment rendered for the defendant.

Filed Jan. 26, 1889.

The only error which the appellant assigns is the overruling of his motion for a new trial.

The motion contains several reasons, but in their brief the able counsel for the appellant confine the discussion to certain of them which relate to the admission and exclusion of testimony offered upon the trial, thereby waiving all other questions.

There is what purports to be a bill of exceptions containing the evidence in the record, but it fails to state, “ this is all the evidence given in the cause; ” nor does it contain equivalent words. There is nothing in the record bringing the case within section 630, R. S. 1881.

Following the numerous decisions of this court, which hold that the evidence is not properly in the record, and that questions depending upon it can not be considered, unless the bill of exceptions contains the words, “ this is all the evidence given in the cause,” or their equivalent, we must hold that the questions which are discussed by appellant’s counsel are not in the record so that we can consider them. Kleyla v. State, ex rel., 112 Ind. 146; Brickley v. Weghorn, 71 Ind. 497; Gazette Printing Co. v. Morss, 60 Ind. 153; McDonald v. Elfes, 61 Ind. 279; Sessengut v. Posey, 67 Ind. 408.

The judgment is affirmed, with costs.