Hutchins v. Elmer

Per Curiam. Elmer, who was the plaintiff,«brought this action against JEEutchins, alleging in his complaint that the defendant on, &e., at, &c., unlawfully, &e., broke and entered the plaintiff’s close, to his damage, &c. The issues were tried by the Court, who found for the plaintiff. Hew trial refused and judgment. The only error assigned on the record is that the finding of the Court is not sustained by the evidence. There is a hill of exceptions which, after setting forth certain oral testimony, concludes thus: “ which was all the testimony given in the cause.” This averment does not meet the requirement of rule 30 of this Court, which says: “ In every bill of exceptions purporting to set out the evidence, &c., the words, this was all the evidence given in the cause, are to be regarded technical and indispensable to repel the presumption of other evidence.” 7 Ind. 194, 588; 10 id. 568; 11 id. 393; 16 id. 139, 231, 259, 316, 267. It follows, there being no proper averment, that “ all the evidence given in the cause ” was in the record, [296] we must intend that there was evidence sufficient to sustain the finding, &c. C. II. Burchenal and J. B. Julian, for the appellant. The judgment is affirmed, with costs.