Citizens Insurance v. Harris

Elliott, C. J. No demurrer was filed to the appellee^ complaint at the special term, and the specification in the as [393] signment of errors, that the court erred in overruling the demurrer to the complaint, has no foundation. Filed Dec. 9, 1886. The case is not within the statute concerning agreed cases, for it is an ordinary action at law with' an agreement as to the facts. There is an essential difference between an agreed case and a case where the trial takes place upon an agreed statement of facts. Oppenheim v. Pittsburgh, etc., R. W. Co., 85 Ind. 471, see p. 477 and authorities cited; Zeller v. City of Crawfordsville, 90 Ind. 262; Pennsylvania Co. v. Niblack, 99 Ind. 149. The agreement as to the facts in a case not an agreed one under the statute, is mere evidence and nothing more. A recital in the agreement that the facts are embodied in it is not, as was said in Martin v. Martin, 74 Ind. 207, a substitute for the bill of exceptions; whereas, in an agreed case under the statute, neither pleadings nor bills of exception are required. Here, the agreement as to the facts is but an agreement as to what the evidence would establish, and it is only in the record by force of the bill of exceptions. But, while the agreement as to the facts is in the record, there is no statement in the bill showing that it contains all the evidence, and as there can be no decision of the questions presented without a consideration of all the evidence, it must be held that the appeal fails. It has long been the rule that, unless the record affirmatively shows that all the evidence is in the bill of exceptions, no question requiring a consideration of the entire evidence is presented. Judgment affirmed.