Opinion
No. 13,715.
Filed July 31, 1929.
APPEAL — Bill of Exceptions — Grant of Time for Filing — When must be Made — Bill Containing Evidence — Evidence Not Considered. — Where time was not given on overruling motion for a new trial to file a bill of exceptions containing the evidence, and the bill was filed at a subsequent term of court, the evidence is not in the record, and will not be considered on appeal.
From Marion Municipal Court (5,659); Thomas E. Garvin, Judge.
Action between J. Harry Miles and Otis Boruff. From the judgment rendered, the former appealed. Affirmed. By the court in banc.
Herman W. Kothe and Grier M. Shotwell, for appellant.
L. Russell Newgent and William R. Forney, for appellee.
The verdict in this cause was returned and judgment entered thereon October 3, 1928. Within thirty days thereafter appellant filed his motion for a new trial. This motion was overruled January 7, 1929, with exception to appellant, but without any time being given within which to file bill of exceptions. On January 21, appellant prayed an appeal, and on that day was given sixty days for bill of exceptions. The bill of exceptions was presented to the judge on a day in a subsequent term of court. Appellee has filed a motion to dismiss, setting out the record as above stated and calling attention to the fact that the only questions presented by this appeal require a consideration of the evidence, which he correctly says is not in the record. Hatfield v. Ralston (1927), 85 Ind. App. 621, 155 N.E. 221. Appellant has made no answer to appellee's contention that the evidence is not in the record.
The fact that the evidence is not in the record is no reason why the appeal should be dismissed, but it necessarily requires that the judgment be affirmed.
Affirmed.