Peck v. Vankirk

15 Ind. 159, 1860 Ind. LEXIS 332

Opinion

Davison, J.

This was an action, by the appellee, who was the plaintiff, against Peek, to enjoin proceedings upon a writ of execution. There was a verdict for the plaintiff; upon which the Court, over a motion for a new trial, rendered judgment.

The record shows that the cause was tried on April, 16, 1857. And that the Court, a new trial having been refused, granted the defendant leave to file a bill of exceptions, within thirty days. There is, in form, a bill of exceptions set out in the record; but it does not appear when it was filed. And, for that reason, the appellee moves the Court to strike it from the record. The code provides: “ That the party objecting to a decision, must except at the time it is made; but time may be given to reduce the exception to writing, but not beyond the term, unless by special leave of the Court.” 2 R. S., § 343, p. 115. In this instance, the leave, evidently, extended “ beyond the term,” and it seems to us, that the record ought to show that the bill of exceptions was filed within the prescribed time. 12 Ind. 380. We are inclined to hold, that a bill of exceptions is no part of the record, unless the record s^ows when it was filed. Kitchen v. Moye, 17 Ala. 143; Haden v. Brown, 22 id. 572. The appellee’s motion must be sustained; and the result is, there is no error in the record.

J. M. Flagg, for appellant. B. Parrett, for appellee.

Per Guriam.

The judgment is affirmed, with costs.