Maffett v. Pollard

Davison, J. This was an action by the appellee, who was the plaintiff against Moffett, upon an account for ninety-five [179] dollars. The account, originally, was in favor of one John Shiel, who assigned it to the plaintiff. Shiel was made a defendant to answer as to the assignment, etc. The issues were submitted to the Court for trial. Finding for the plaintiff. New trial refused, and judgnrent. Hester, Phelps, and Harrison, for the appellant. C. C. Nave, for the appellee. The record shows that the cause was tried on the 19th of November, 1860, and that the Court, upon its refusal to grant a new trial, granted the defendant leave to file his bill of exceptions within thirty days. There are, in form, two bills of exceptions set out in the transcript, but the record fails to show when they were filed. In this instance, the leave evidently extended beyond the term, and that being the case, the record ought to show that the bills were filed within the prescribed time. Simonton v. The Plank Road, etc., 12 Ind. 380. Howard v. Burk, 14 Id. 35. Peck v. Vankirk, 15 Id. 159. These authorities are decisive that the bills of exceptions are no part of the record, and the result is, the rulings of the Common Pleas are not properly before us. Per Curiam. The judgment is affirmed, with five per cent, damages and costs.