West v. Todhunter

77 Ind. 600

• Court: Indiana Supreme Court
• Decided: November 15, 1881
• Docket: No. 8624
• Status: Published

Opinion

Woods, J.

The appellants sued the appellees for obstructing a highway. Trial by the court; finding for-the defendants. Motion for a new trial,-on the ground that the finding is not sustained by sufficient evidence, and is contrary to law,, overruled; exception and judgment. There are six hundred and ninety pages of the transcript, of which all but twelve are given to the long-hand report of the evidence. Rule 19 has not been complied with, and the appeal might be dismissed for the want of marginal notes on the transcript.

The bill of exceptions purports to contain all the evidence, but it is manifest that certain parts of the evidence have been omitted. For this reason alone the judgment would have to be affirmed. Fouty v. Morrison, 73 Ind. 333; Powers v. Evans, 72 Ind. 23.

The appellants’ counsel, in their brief, say: “The only contested question is, Was the obstructed track a highway? * * * It is maintained that the evidence, in a decided preponderance, establishes the obstructed track, at the time of obstruction, a highway, both by express dedication by the owners of the soil and long usage by the public. On the weight and preponderance of the evidence sustaining this proposition, we ask a reversal of this cause.”

It has been often decided that this court will not consider or attempt to determine the weight and preponderance of evidence.

The judgment is affirmed, with costs.