Plotz v. Friend

Crumpacker, J. The only question discussed by counsel for appellant is upon the sufficiency of the evidence to support the verdict. It is maintained upon the other side that the evidence is not in the record, and consequently there is nothing for decision. The motion for a new trial was overruled on the 27th day of December, 1890, and sixty days were granted appellant to file a bill of exceptions containing the evidence. The bill of exceptions was signed and approved by the trial judge on the 28th day of March, 1891, and filed with the clerk on the 1st day of April following. It does not appear in the bill when it was presented to the [147] judge, but there is written on the margin of the transcript opposite the certificate the following statement: Filed June 10, 1892. “ This bill was presented to me February 20th, 1891. “ George A. Bicknell, Judge F. C. C.” This statement does not purport to be contained in the bill of exceptions but is a copy of an endorsement made thereon. Section 629, R. S. 1881, requires that “ the date of the presentation shall be stated in the bill of exceptions.” It was said by the court in Orton v. Tilden, 110 Ind. 131 (139) : “ It is no compliance with the provisions of this section of the statute, to recite that, within the time allowed, the defendants presented their bill of exceptions. But the exact date of the presentation must be stated, not in the margin nor on the back of the bill, but in the bill itself, so that it may be seen by this court whether or not the date of the presentation was within the time allowed by the court.” The same rule was declared in Buchart v. Burger, 115 Ind. 123; McCoy v. State, ex rel., 121 Ind. 160. Following these authorities we must hold that the evidence is not before us. The judgment is affirmed.