Erb v. Moak

Franklin, C. The complaint in this case was in three paragraphs, 1st, for work and labor; 2d and 3d, on special contracts for the building of a dwelling-house. Answer in five paragraphs, and reply in denial. Trial by jury and finding for the plaintiff, with answers to interrogatories returned by the jury. Motions for a new trial and in arrest of judgment were overruled, and exceptions reserved. The errors assigned in this court are the overruling of the motion for a new trial, and the motion in arrest of judgment. No objection has been made in this court to the overruling of the motion in arrest of judgment, nor do we perceive any. Under the overruling of the motion for a new trial, there is no question which appellant attempts to present that does not depend upon the bill of exceptions; and appellee’s counsel insists that the bill of exceptions is not properly in the record. The trial was had at the November term, 1879, and time was given by the court to appellant until the 2d day of the-next term to file his bill of exceptions. On the 2d day of the next term, the judge signed the bill of exceptions, and it was on that day duly filed with the clerk. On the second day is not included in until the 2d day. The bill of exceptions was filed one day too late, and can not be considered as a part of the record. In order to be properly in the record, the bill of exceptions must be filed within the [570] time fixed by the court. Newby v. Rogers, 40 Ind. 9, p. 16; DeHaven v. DeHaven, 46 Ind. 296; Board of Commissioners v. Eperson, 50 Ind. 275; Toledo, etc., R. W. Co. v. Howes, 68 Ind. 458; Buskirk’s Practice, 144, and cases there cited. As there is no question properly presented in this case for decision, the judgment below ought to be affirmed. Pee Cueiam. — It is therefore ordered, upon the foregoing opinion, that the judgment below be, and the same is, in all :things affirmed, at appellant’s costs. Wooes, J., not participating.