Ayres v. ArmstrongAyres v. Armstrong
- Reporters:
- , ,
- Before:
- Monks
This wаs an appeal from a survey оf real estate. The cause wаs tried, the court found against apрellant and, over a motion for а new trial, rendered judgment on the finding.
The only error assigned is that the court erred in overruling the appellant’s motiоn for a new trial.
The correctness of the court’s ruling on the motion for а new trial depends entirely upon thе evidence. The motion for a new trial was overruled June 26, 1893, and ninety days givеn in which to file a hill of exceptions. A hill of exceptions, purporting tо contain all the evidence given in the cause, was signed by the judge on the 24th of October, 1893, long after the exрiration of the ninety days given. There is an indorsement on the bill of exceptions, signed by the judge, stating that the same wаs presented to him September 16, 1893; this, however, is no part of the record. Cornell v. Hallett, 140 Ind. 634, and cases cited. The statute еxpressly requires that the date of presentation be stated in the bill of exceptions, not on its back or mаrgin. It *264has been uniformly held that when the datе of presentation is not stated in the bill of exceptions, we must consider the date when the bill was signed as the date of its presentation. Cornell v. Hallett, supra, and cases cited. A bill of exceptions, even if presented and signed within the time given, is no part of the record until it is filed. Elliott App. Proced., section 805, and cases cited. Such filing must be after the bill is signеd by the judge. Guiril v. Gillett, 124 Ind. 501. The record does not show that the bill of exceptions was filed.
It is true that it is stated in the record that the bill of exceptions was filed September 28, 1893, but not being at that time signed by the judge, it was not a bill of exceptions, аnd Jid not thereby become a part of the record. Guirl v. Gillett, supra.
It is clear, for the reason stated, that what purports to be a bill of exceptions, is nоt part of the record. No question is therefore presented as to the action of the court in overruling the motion for a new trial.
Judgment affirmed.