Pullen v. McKee

48 N.E. 361, 149 Ind. 709, 1897 Ind. LEXIS 120

• Court: Indiana Supreme Court
• Decided: November 23, 1897
• Docket: No. 18,276
• Status: Published

Opinion

Monks, J.

Appellees brought this action against appellants for damages and an injunction. The trial of said cause resulted in a final judgment in favor of appellees.

The only error assigned and not waived calls in question the action of the court in overruling appellants’ motion for a new trial. The questions presented by the assignment of error depend upon the evidence. Counsel for appellees insist that the evidence is not in the record for the reason that it does not affirmatively appear from the record that the longhand manuscript of the evidence was filed in the clerk’s office before it was incorporated in the bill of exceptions. It does not appear from the record that the longhand manuscript was filed in the clerk’s office before it was embodied in the bill of exceptions. The evidence is not, therefore, in the record. Campbell v. State, 148 Ind. 527; Yellow Hammer, etc., Co. v. Carlin, 148 Ind. 68, and cases cited; Citizens Street R. R. Co. v. Sutton, 148 Ind. 169, and cases cited; Koons v. Beach, 147 Ind. 137, and cases cited; Hoover v. Weesner, 147 Ind. 510.

No available error appearing in the record, the judgment is affirmed.