Peck v. Board of Commissioners

Howk, J. The appellant presented to the appellee, for allowance, an itemized account for commissions claimed on divers sums of money, other than taxes, paid to him as treasurer of Tippecanoe county. The appellee refused to allow any part of his account, and he appealed from its decision to the circuit court of the county. There the appellee’s motion to strike out each of the twenty-one items of the appellant’s account, for the reason that it was not a proper and lawful charge in his favor against the appellee, was sustained by the court as to each and all of the items. To this ruling the appellant excepted, and judgment was rendered against him for appellee’s costs. ' The decision of the court in sustaining appellee’s motion to strike out is the only error assigned by the appellant. The appellant’s counsel insist, with much earnestness, that each one of the items of account struck out by the circuit court was a proper and legal charge against the appellee and in [222] favor of the appellant. We are of the opinion, however, that the questions discussed by counsel are not saved in or presented by the record of this cause. Each and all of the items of the appellant’s account were struck out by the court, on appellee’s motion. Thereafter these items of account constituted no part of appellant’s claim or cause of action, and they could not be brought back into the pleading or record except-by a bill of exceptions or by an order of court. This is settled by many decisions of this court. Berlin v. Oglesbee, 65 Ind. 308; Stott v. Smith, 70 Ind. 298; Dunn v. Tousey, 80 Ind. 288. The items of appellant’s account, after they were struck out by the court, were not made part of the record either by a bill of exceptions or by an order of the court. In the absence of these items from the record, the questions discussed by appellant’s counsel are not presented for our decision. We can not say from the record of this cause that the court below erred in sustaining appellee’s motion, and, therefore, we are bound to say that such ruling was not erroneous. Eor, certainly, the record before us wholly fails to exclude the reasonable presumptions in favor of the correctness of the court’s decision. Myers v. Murphy, 60 Ind. 282; Foster v. Ward, 75 Ind. 594; Coulter v. Coulter, 81 Ind. 542. The judgment is affirmed, with costs.