State ex rel. Wahl v. Marsh

Olds, J. — This is an action on a guardian's bond. The only error assigned is the overruling of the appellant's motion fora new trial. The causes for a new trial set forth in the motion are, that “ the finding of the court is contrary to the evidence,” and “ the finding of the court is contrary to law.” By the bill of exceptions it appears that the files and judgment of Applegate v. H. R. Carr et al., and a note and mortgage were introduced in evidence, and it further appears that the files are lost; and the clerk of the Clark Circuit Court, at the request of the attorneys for appellant, inserted in the bill of exceptions the entry on the judgment docket in a case of Rebecca Applegate v. Hezekiah R. Carr et al., and the clerk certifies to the record in the case that “ the above and foregoing is a full, true and complete transcript of all pleadings filed pertaining to said cause, except the papers in an action wherein Eebecca Applegate was plaintiff, and Hezekiah E. Carr et al. were defendants, referred to in the bill of exceptions, and which said files are missing and can not be found in my office.” From this it affirmatively appears that the bill of exceptions does not contain all the evidence, and the case can not be considered on the evidence. French v. State, ex rel., 81 Ind. 151; Shimer v. Butler University, 87 Ind. 218; Collins v. [395] Collins, 100 Ind. 266; Hendrix v. Rieman, 90 Ind. 119; Thames Loan, etc., Co. v. Beville, 100 Ind. 309; Lawrenceburgh, etc., Co. v. Hinke, ante, p. 47. Filed May 16, 1889; petition for a rehearing overruled June 19, 1889. There is no question presented to this court by the record. Judgment affirmed, with costs.