184 Ind. 78 | Ind. | 1915
This is an appeal from a judgment in favor of appellee for personal injuries. The action was commenced in the Superior Court of Marion County on November 2, 1910. The record in the cause shows the following entry as of January 12, 1912: “Comes now the plaintiff, by counsel, and
The record shows that the trial court upon sustaimng the motion of appellee to reinstate the cause granted appellant ten days within which to file a bill of exceptions. No bill , of exceptions was filed. The record shows that appellee filed an affidavit in support of the motion and that an affidavit in opposition thereto was filed in behalf of appellant after which appellee filed a further affidavit. These affidavits are set out in the record but it does not appear that the ruling of the court was based upon the evidence contained in these affidavits and none other. Oral evidence may have been introduced which the court considered in connection with the affidavits in passing upon the motion to reinstate. This court cannot reverse a ruling of the trial court based upon a question of fact unless the record affirmatively shows that all of the evidence upon which such ruling is based is before this court. This does not appear from the transcript in this case by bill of exceptions or otherwise. The presumption in favor of the correctness of the ruling of the trial court requires an affirmance of the judgment. Judgment affirmed.
Note. — Reported in. 110 N. E. 545. See, also 3 Cyc 275.
