Warner v. Campbell

39 Ind. 409

Opinions

Downey, J.

The appellees sued Isaac Warner, Simeon Warner, and James W. Wilson. They asked no judgment against Wilson. He made default. After issues had been made as to the Warners, there was a trial by jury, verdict for the plaintiffs against them, motion by Isaac Warner aloné for a new trial overruled, and judgment against the two Warners for the amount of the verdict. The appeal was taken by both the Warners, as appears by the notice which was served on the appellees and the clerk. The errors are assigned by Isaac Warner alone. Process was issued by the clerk of this court in the name of Isaac Warner alone, • following the assignment of errors, as it was proper to do. Passing over these apparent irregularities, we will consider the questions attempted to be raised, and dispose of the case.

The first error alleged is, that the court improperly struck out the third paragraph of the answer. This question is not reserved by bill of exceptions, and hence we cannot decide it. The Indianapolis Piano Manuf’g Co. v. The First National Bank, 33 Ind. 302, and cases cited.

The error assigned, that the court erred in refusing a new trial on the motion of the defendants, covers all the other questions in the case.' This question depends upon the facts shown by the bill of exceptions. Sixty days were given in which to prepare and file the bill of exceptions. The judge says, in the concluding part of the bill of exceptions, “And now, within said sixty days, the defendants tender their bill of exceptions, which is approved by the court and made a part of the record of this cause,” etc. It does not any where appear when the bill of exceptions was actually filed. This court has repeatedly held that when time is given in which to file a Iqill of exceptions, the record must show affirmatively that it was filed within the time given. Peck v. Vankirk, 15 Ind. 159. The bill of exceptions not appearing to be properly in the record, we cannot decide, therefore, whether the motion for a new trial was correctly refused or not, but should presume that it was.

G. H. Voss and B. F. Davis, for appellants. N. B. Taylor and E. Taylor, for appellees.

The judgment is affirmed, with costs.