Eble v. Miles

McMahan, J. Appellants filed exceptions to the final report of appellee. After a hearing the court found that the matters and facts as stated in the administrator’s report were true, that the same should be approved, and the administrator discharged. The court found against appellants “that the matters and things averred and set out in their exceptions here [402] in are not true.” Appellants excepted to the finding for the reasons that it was not sustained by sufficient evidence and was contrary to law. After rendition of judgment appellants excepted to the judgment for the same reasons. Without filing a motion for a new trial and without bringing the evidence into the record, appellants appeal and assign as error the action of the court in overruling their exceptions for the reasons: (1) that the verdict, “finding and decree” is not sustained by sufficient evidence and is contrary to law; (2) “that the verdict, finding and decision” is not sustained by sufficient evidence and is contrary to law. The issues raised by the administrator’s report and appellants’ exceptions were issues of fact, to be tried and determined by the same rules as govern in ordinary civil actions arising out of claims filed against estates. Wysong, Exr., v. Nealis (1895), 13 Ind. App. 165, 41 N. E. 388. Where issues of fact are raised by filing exceptions to an administrator’s final report, no question can be presented on appeal relating to the sufficiency of the evidence to support the decision of the court, in the absence of a motion for a new trial. Under the record as it comes to us we must presume there was evidence to support the finding of the court. Spray v. Bertram (1905), 165 Ind. 13, 74 N. E. 502; Union Bldg., etc., Assn. v. Block (1922), 78 Ind. App. 563, 135 N. E. 351; Taylor v. McGrew (1902), 29 Ind. App. 324, 64 N. E. 651; Swift, Admr. v. Harley (1898), 20 Ind. App. 614, 49 N. E. 1069. No question being presented for our determination, the judgment is affirmed. Nichols, C. J., not participating.