State ex rel. Miller v. Webster

Baker, J. The relator began this action against appellee Webster as principal and his co-appellees as sureties upon the bond of Webster as trustee of Stafford township, in DeKalb county, to recover damages alleged to have been occasioned by the failure of the trustee to cause a certain public ditch in his township to' be cleaned out and repaired. The liability is predicated upon §10 of the act of 1899. (Acts 1899, p. 53 et seq.) The case has been transferred here by the Appellate Court on the ground that the constitutionality of the act of 1889 is involved. The only error assigned is the overruling of appellant’s motion for a new trial. The grounds of the motion relate wholly to the admissibility and sufficiency of the evidence. Appellees insist that the evidence is not in the record. What purports to be an original bill of exceptions is incorporated in the transcript. There is no order-book entry showing the filing of the bill after it was signed by the judge. This was necessary. Richardson v. Dawson, ante, 187; Shirk v. Lingeman, 26 Ind. App. 630. Furthermore, the clerk of the Dekalb Circuit Court has failed to certify under his hand and the seal of the court that the bill of exceptions is the original or a copy of the bill filed in the cause, if it ever was filed. Watson v. Finch, 150 Ind. 183; Fidelity, etc., Union v. Byrd, 154 Ind. 47; Ewbank’s Manual, §117, p. 177. Judgment affirmed.