Samples v. State ex rel. Guthrie

28 N.E. 572, 2 Ind. App. 395, 1891 Ind. App. LEXIS 185

• Court: Indiana Court of Appeals
• Decided: October 1, 1891
• Docket: No. 222
• Status: Published

Opinion

New, C. J.

This was an action by the appellee against the appellants — one of whom was a constable and the others his sureties — to recover damages for the alleged wrongful selling of the relator’s property, the same having been claimed by him as exempt from execution.

In the court below there was a judgment in favor of the appellee for $70.

The appellants assign as error the overruling of their motion for a new trial.

The reasons named for a new trial were, that the finding of the court was not sustained by sufficient evidence, and was contrary to law.

The motion for a new trial was overruled on the 3d of October, 1889, and the court gave to the appellants forty days from that time in which to file their bill of exceptions.

The bill was not presented to the judge for his signature until November 13th, 1889.

According to the recognized mode of computing time in such cases, we must exclude the 3d day of October, when the leave was given, and include the 13th of November, the day on which the bill was presented and signed. This gives twenty-eight days in October and thirteen days in November, showing that the bill was presented on the forty-first day. The bill was not presented to the judge for his signature within the time allowed.

A bill of exceptions does not become a part of the record unless it has been presented to the judge for his signature within the time limited.

In the absence of the evidence the error assigned can not be effectual.

The judgment is affirmed, with costs.