Weathers v. Doerr

53 Ind. 104

• Court: Indiana Supreme Court
• Decided: May 15, 1876
• Status: Published

Opinion

Pettit, J.

This suit was brought by the appellants against the appellees, to review a judgment. Sec. 587 of the code provides, that “the complaint may be filed for any error of law appearing in the proceedings and judgment, or for material new matter, discovered since the rendition thereof, or for both causes, without leave of court.” 2 G. & H. 280.

There is no attempt to put this case on the discovery of new matter since the rendition of the judgment. A full transcript of the judgment was not filed with, and made a part of, the complaint for review. The complaint does not point out any error appearing on the face of the record, but attempts to contradict its truth. This can not be done in a case for review. The error must be apparent on the face of the record. Buskirk's Prac. 270.

All the principal allegations of the complaint were struck out, on motion, leaving nothing but the reciting or historical parts. To the residue of the complaint a demurrer for want of sufficient facts -was sustained.

The striking out certain parts of the complaint is assigned for error, but the parts struck out are not presented to us by a bill of exceptions setting out the parts struck out. A pleading struck out forms no part of the record, unless copied into a bill of exceptions. On this point the authorities are numerous in our reports.

The demurrer to the residue of the complaint was properly sustained, because it showed no error apparent on the face of the record.

The judgment is affirmed, at the costs of the appellants.