12 N.E.2d 945 | Ind. | 1938
This is an attempt to appeal from an order of the Whitley Circuit Court dismissing the appellant's cause of action. The original order of dismissal entered by the court is as follows: "The plaintiff herein having failed to comply with the order of the Court made by letter dated June 29th, 1935, which provided for filing of amended pleadings on or before August 1st, 1935, this cause is now dismissed at the plaintiff's costs. . . . to which plaintiff at the time objected and excepted, and the plaintiff is given and granted 30 days in which to file all bills of exceptions."
Thereafter, the appellant filed a motion to vacate the order dismissing the cause and a petition to reinstate the same on the dockets of the court. A hearing was had and the court made a further order, which is the one here complained of, to wit: "Come again the parties and this cause is now submitted to the court on the matter of the petition of the plaintiff to vacate judgment of dismissal and to re-instate the cause of action; and the court now hears the argument of counsel and considers the counter affidavits filed by the defendant, and upon due consideration andafter hearing all the facts and evidence the Court now overrules the plaintiff's motion to vacate judgment of dismissal and reinstate this cause. To which ruling of the Court the plaintiff excepts and objects." (Italics ours.)
This appeal followed and appellant assigns as error the action of the court below in dismissing the cause and in overruling his motion to set aside the dismissal and to reinstate the cause. The errors are separately assigned but they may be considered together for the purposes of this opinion. The record contains no bill of exceptions. *391
It is a settled rule of appellate procedure in this state that on appeal the record is conclusive and imports absolute verity. Burton v. Ferguson (1880),
It will be noted that the order of the court appealed from affirmatively recites that appellant's motion to vacate the judgment of dismissal and reinstate the cause was denied 2, 3. upon due consideration, and "after hearing all the facts and evidence." We are bound by this recital in the record to conclude that the court did hear facts and evidence. Since the evidence is not before us, we cannot pass upon the question raised by this appeal.
The case of Kurtz v. Phillips (1916),
In Henry, Receiver v. Bevis (1915),
Since the record presents no question for review, the judgment is affirmed.
Roll, C.J., absent.