Baltimore & Ohio Southwestern Railway Co. v. McCartney

18 Ind. App. 704 | Ind. Ct. App. | 1897

Henley, J. —

The only error assigned by appellant in this cause is that the lower court erred in overruling appellant’s motion for a new trial.

Counsel for appellee contend that the evidence is not before this court because the record does not affirmatively show that the original longhand manuscript of the shorthand report of the evidence made by the stenographer appointed by the court was filed in the clerk’s office prior to the time it was incorporated in the bill of exceptions.

The objection is well taken. The record in this cause not only fails to show such filing prior to the filing of the bill of exceptions, but it affirmatively shows -that the original longhand manuscript of the evidence was never filed in the clerk’s office except as* a part and' parcel of the bill-of exceptions.

By numerous decisions of both the Supreme Court and this court, it is imperative that the original longhand manuscript of the shorthand report of the evidence must be filed in the clerk’s office prior to its incorporation in the bill of exceptions, and the record must show this affirmatively in order to bring the evidence before the court. Pittsburgh, etc., R. W. Co. v. Cope, 16 Ind. App. 579, and cases therein cited.

Without the evidence none of the questions presented by the motion for a new trial can be considered.

Judgment affirmed.