Chaney v. Cavins, Admr.

McMahan, J. This is an appeal from the action of the court in approving the final report of appellee William L. Cavins, administrator of the estate of Clinton Mullis, and is taken in accordance with §3311 Burns 1926, Acts 1913 p. 65. Appellant seeks to present various questions in relation to the admission and exclusion of evidence, and also contends that the decision of the court is not sustained by sufficient evidence, and that it is contrary to law. An examination of the record discloses that appellant’s motion for a new trial was overruled June 25,1927, when thirty days’ time was given to file a bill of exceptions containing the evidence. On July 23, 1927, and in vacation, appellant filed a verified application for an extension of the time for filing the bill, which was forthwith granted. No notice to appellees of the presentation or hearing of the application was given, and the same was determined in the absence of appellees and their counsel. Following the certificate of the clerk to the correctness *36 of the transcript, there is what purports to be a bill of exceptions containing the evidence. The certificate of the judge states that the bill of exceptions was presented to him for approval July 30,1927, and that the same was approved and signed by him on that day. On authority of Richmond Light, etc., Power Co. v. Rau (1915), 184 Ind. 117, 110 N. E. 666, we hold the evidence is not properly in the record and must be disregarded. Attention is also called to the fact that the only certificate of the clerk of the trial court to the correctness of the transcript precedes the bill of exceptions and does not in any way identify the same as a part of the record. See Mercantile Discount Corp. v. Clark (1922), 78 Ind. App. 313, 135 N. E. 490. Judgment affirmed.