Seymour Woollen Factory Co. v. Brodhecker

Miller, J. This was a proceeding instituted to enjoin the collection of taxes claimed to have been unlawfully assessed on the capital stock of the appellant by the board of equalization of Jackson county. The error assigned in this court calls in question the action of the court below in overruling the motion for a new trial. [390] The causes for which a new trial was asked were : “ 1. Because the decision of the court is not sustained by sufficient evidence. '* “ 2. Because the decision of the court is contrary to law.” The appellee has filed a motion to strike out the bill_ of exceptions, by which the evidence given on the trial is brought into the record, and has submitted a brief in support of the motion. Without the evidence in the record no question is presented for our consideration. We, therefore, proceed to determine from the record, as it comes to us, the question presented by the motion. We find in the bill of exceptions, and following a portion of the evidence, the following statement: “ (Here insert full order of the board of equalization, O. B. 15, page 281).” Immediately following the entry there appears in the record what purports to be the proceedings of the county board of equalization of Jackson county for the year 1889. The bill of exceptions, at the conclusion of the evidence, states that “the foregoing was all the evidence given in the cause; ” and the clerk of the court, in his authentication of the transcript, certified that the “ foregoing is a full, true and complete copy of all the proceedings, orders, judgment and files in the above cause, as appears of record and on file now in my office, together with a true copy of the entry on page 281 of Commissioners’ Record No. 15, of the commissioners’ records of said county.” We think it apparent that the evidence was not written out in full and inserted bodily in the bill of exceptions prior to the time the same was signed by the judge and filed in the clerk's office, as required by the uniform rulings of this court. Collins v. Collins, 100 Ind. 266; Wagoner v. Wilson, 108 Ind. 210; Butler v. Roberts, 118 Ind. 481; Doyal v. Landes, 119 Ind. 479; Fiscus v. Turner, 125 Ind. 46; Stevens v. Stevens, 127 Ind. 560. [391] Filed June 16, 1891. We infer that the clerk of the circuit court went to the auditor’s office and copied a portion of the i’ecords of his office to supply the evidence called for by the words “ here insert ” in the bill of exceptions. If such was the case, this portion of the evidence comes to us not only not authenticated by the signature of the judge who tried the case; but wanting the authentication of the officer who was the legal custodian of the record, a portion of which was copied into the transcript. The appellant insists that the motion to strike out the entire bill should be overruled, but admits that if the motion only went to that portion copied from the record of the board of commissioners, it should be sustained. The answer to this is that it appears that a portion of the evidence given in the trial is not properly in the bill, and therefore the integrity of the bill is destroyed. It is not necessary to pass upon the motion to strike out, for we can not examine the evidence in a bill of exceptions unless it ■contains all the evidence, which this does not do. We regret our inability to pass upon the questions of law involved in this appeal, which have been argued with signal ability; but, the question of the sufficiency of the record having been brought before us, we are compelled to examine and pass upon it. In the absence of the evidence, there being no question presented by the record, the judgment is affirmed.