130 Ind. 190 | Ind. | 1891
The appellee’s counsel stoutly contend that the transcript “ presents nothing for the decision of this court.” In support of their position they assert, as one of the premises of their argument, that where the appellant’s counsel direct what parts of the record below shall be copied into the transcript the clerk must obey the direction, and that only such entries and papers as are embraced in the preaipe are properly parts of the record on appeal. This is undoubtedly true, but a liberal construction will be given the preoipe, and incidental entries (not, however, independent entries, or' distinct papers) will be deemed to be impliedly embraced in the specific directions. Reid v. Houston, 49 Ind. 181. To the statement of counsel may be addded the further statement that a party who appeals must present a proper transcript, and where he directs what shall be incorporated in it the
The precipe is part of the record on appeal, inasmuch as the statute requires the clerk “ to append ” the written direction to the transcript. Section 649, R. S. 1881. We must, therefore, examine the precipe to determine whether the necessary papers and entries are in the record. But, while we can ascertain what papers and entries are in the record from an inspection of the transcript and the precipe* we can not determine whether the record is sufficient to present the questions argued without stating, how the questions arose, and giving the general outlines of the controversy, so that it is necessary to make a synopsis of the case. This we do
In speaking of the matters concerning the acts of the administrator, we may remark by the way, appellant’s counsel say, “All which was shown by a final settlement report filed by the administrator.” Returning from this transient digression, and resuming our synopsis, we quote from appellant’s brief the following statements : “ The final settlement was set for hearing, whereupon Stephen Allen filed his exceptions, and notice was given; on the day set for its hearing the report and exceptions were submitted to L. E. Mil-ligan, special judge, for hearing and decision, together with what was termed an ‘ interpleader proceeding,’ that had in the meantime been instituted by Gavin.” The judge took the matter under advisement for several days, and while announcing his-decision Gavin interposed an objection that the “ interpleader proceeding ” was not before him for decision, and a continuance upon the interpleader was asked and obtained, and thereupon Allen’s exceptions were sustained. Subsequently an application was filed before another special judge, C. W. Watkins, to set aside the judgment of the
Nor can it be determined that the last special judge erred in vacating the order of his predecessor. The presumption is that he did not err, and, in the absence of the report and the exceptions, that, presumption stands unrefuted. The precipe does not call for the final report and exceptions, nor are they in the record.
In such cases as this the court may, at its option, either affirm the judgment or dismiss the appeal, and we deem it best to dismiss the appeal.
Although the point is not made by counsel, we think it proper to say that the order of the last special judge was not a final judgment, and, hence, not appealable. The fact that there was no final judgment appears from the statement of appellant’s counsel, that “ Judge Watkins sustained Gavin’s motion and set aside said orders and judgment of said special judge, Milligan, from which decision this appeal is taken.”
Appeal dismissed.