Patterson v. Churchman

22 N.E. 662, 122 Ind. 379, 1889 Ind. LEXIS 86

• Court: Indiana Supreme Court
• Decided: November 1, 1889
• Docket: No. 13,701
• Status: Published

Opinions

Olds, J.

The questions discussed by counsel in this cause arise on the evidence, and the evidence is not properly in the record, therefore there is no question presented for decision.

The record shows that the cause was referred to a master commissioner of the court, and such master commissioner authorized to take the evidence adduced by the parties on the issues joined, and to report the same to the court, together with his special findings of facts and his conclusions of law, and such commissioner was authorized to employ a stenographer, who might be agreed upon by the parties, to take the evidence. The record then shows that the master commissioner filed a report in which it was shown that he had employed a stenographer, who had taken the evidence in shorthand and then written it out in long-hand for the use of the commissioner and the court. It then appears that such commissioner filed his report and the evidence taken before him. His report is set out in a transcript, in which it is shown that the parties appeared before him and submitted testimony, which testimony is herewith reported to the court.

The bill of exceptions in the case contains neither the report nor the evidence. So much of the bill of exceptions as is material is as follows :

“ Be it remembered, that when this cause came on for hearing upon the master’s report and the plaintiff’s exceptions thereto, it was by agreement of parties submitted to the court for hearing and trial without the intervention of a jury, and on the trial there was introduced the master’s report in evidence, as follows, viz.: (Heretofore inserted in the record. See page —, line — of this manuscript.) And, also, the plaintiff’s exceptions thereto, as follows, viz.: (Heretofore inserted in the record. See page 56, line — of this transcript). And, also, the evidence (stenographer’s report) adduced and had at the hearing before the master, which is enbodied in and made a part of this bill of exceptions.”

There is no part of the evidence embodied in the bill of exceptions.

There is a large volume endorsed and filed in this case, certified to by the reporter as a correct and impartial report of all the evidence taken before the master, and a certificate of the clerk certifying that a long-hand manuscript copy of the evidence given before the master commissioner in the cause was duly filed in his office, and the one embodied in the plaintiff’s bill of exceptions, filed November 11th, 1885, is the identical one so filed as aforesaid, -and now certified and transmitted herewith.

It is most earnestly contended by counsel for appellant that in this state of the record the evidence is properly in the record to be considered by this court, but this question has been so often decided adversely to the theory of counsel that we deem it unnecessary to extend this opinion further than to cite the cases deciding the question, which we think hold the correct doctrine, and we shall still adhere to it. Wagoner v. Wilson, 108 Ind. 210; Stone v. Brown, 116 Ind. 78; Flint v. Burnell, 116 Ind. 481; Butler v. Roberts, 118 Ind. 481; Colt v. McConnell, 116 Ind. 249; Fahlor v. State, 108 Ind. 387; Doyal v. Landes, 119 Ind. 479.

Filed Nov. 1, 1889.

The decisions upon this question are based upon and in accordance with the plain provisions of the statute, and it is no hardship on litigants to require a compliance with its plain provisions.

Judgment affirmed, with costs.

Elliott, C. J., took no part in the decision of this cause.