Stark v. Owens

Davis, J. The only error assigned in this court is: “The court erred in overruling the appellant’s motion for a new trial in this cause.” The only question discussed arises on the evidence. Counsel for appellee insist that the evidence is not in the record. No shorthand reporter was appointed in the court below to take down the evidence in shorthand, in pursuance of the provision of section 1470, Burns’ R. S. 1894 (1405, R. S. 1881). No attempt has been made to bring the evidence in the record as provided in section 1476, Burns’ R. S. 1894 (1410, R. S. 3881). The evidence at the trial was taken in longhand, and was afterwards incorporated in a bill of exceptions, in accordance with the provision of sections 637-641, inclusive, Burns’ R. S. 1894 (625-629, R. S. 1881). In making the transcript of the record for this appeal the bill of exceptions containing the evidence was not copied. Section 661, Burns’ R. S. 1894 (649, R. S. 1881). The original bill of exceptions is incorporated in the transcript filed in this court. Under the rule announced by the Supreme Court [346] and followed by this court, the evidence is not in the record, and no question arising thereon can be considered or determined by us on this appeal. McCoy v. Able, 131 Ind. 417; Gish v. Gish, 7 Ind. App. 104. It is only when the stenographer’s report of the evidence with its incidents is incorporated in the bill of exceptions that the original bill may be certified up to this court as a part of the record. All other bills of exceptions must be copied by the clerk in order to make them a part of the transcript of the record on appeal. As the original bill of exceptions containing the evidence is incorporated into the transcript of the record on this appeal, we cannot, as before stated, under authorities cited, determine the question sought to be presented for our consideration. Judgment affirmed.