Davis v. Talbot

Hackney, J. The assignment of error in this case [81] is upon exceptions to conclusions of law rendered by the trial court upon facts specially found. The record affirmatively discloses that the issues presented to the trial court arose upon three paragraphs of complaint, neither of which, is in the transcript. The transcript recites that the pleadings were lost from the flies, and that the attorney for the defendants, appellants in this court, filed, as a substituted complaint, a document purporting to be a complaint in a single paragraph. It is manifest that findings of fact and conclusions of law can only be measured in the light of the issues submitted to the trial court. Here we are denied an opportunity to know the issues submitted upon two paragraphs of complaint, and it does not appear that the third paragraph was substituted by order of the trial court. Without such order there could be no proper substitution. The record, therefore, presents no basis for a consideration of the court’s conclusions of law. Burkham v. McElfresh, 88 Ind. 223; State, ex rel., v. Earl, 133 Ind. 389. The judgment is affirmed.