Wilson v. Kester

Felt, J. 1. The only error assigned and relied on for reversal of the judgment of the lower court is the overruling of appellants’ motion for anew trial. The only questions attempted to be presented under the motion for a new trial depend upon the evidence which is not properly in the record, and can not therefore be considered. 2. The motion for a new trial was overruled on June 23, 1913, and on June 30, 1913, at the same term of court, appellants were given ninety days to file their bill of exceptions containing the evidence. Under the statute and repeated decisions of both our courts of last resort, to be effective, an extension of time beyond the term, in which to file a bill of exceptions, must be granted when [472] the motion for a new trial is overruled. §656 Burns 1914, §626 R. S. 1881; Huntington Brewing Co. v. Miles (1912), 177 Ind. 109, 96 N. E. 145; Stremmel v. Gaar, Scott & Co. (1911), 176 Ind. 600, 96 N. E. 703; Theobald v. Clapp (1909), 43 Ind. App. 191, 87 N. E. 100; Brown v. American Steel, etc., Co. (1909), 43 Ind. App. 560, 88 N. E. 80. Judgment affirmed. Note. — Reported in 109 N. E. 744. See, also, under (1) 3 Cyc. 164.