Hershberger v. Kerr

159 Ind. 367 | Ind. | 1902

Hadley, J.

— Action for the recovery of money. The record shows that appellant on April 17, 1899, filed in the clerk’s office his complaint, which is not set out, but is referred to by “here insert,” to which complaint a demurrer was sustained; and on May 23, 1899, appellant filed an amended complaint in one paragraph, to which a demurrer was overruled.

The assignments of error in this court are, (1) that the court erred in sustaining the demurrer to the plaintiff’s complaint; (2) that the court erred in overruling appellant’s motion for a new trial. The first assignment presents no question, because the filing of an amended complaint carried the original complaint and rulings thereon out of the record (Weaver v. Apple, 147 Ind. 304; Indianapolis, etc., R. Co. v. Center Tp., 143 Ind. 63), and the ruling on the demurrer to the amended complaint was in appellant’s favor, for which he cannot be heard to complain.

Appellant is equally unfortunate in his second assignment. lie states fourteen reasons for a new trial, every one of which depends for solution upon the evidence, and the evidence is not in the record! It is shown that the motion for a new trial was overruled and final judgment rendered on October 24, 1899, and that ninety days were given in which to file a bill of exceptions. We know that the October term of the Madison Superior Court expired on the Saturday preceding the first Monday of December, 1899. §1426f Burns 1901. After the term the bill of exceptions could be filed only within the time allowed by the court. The record shows that it was not filed until September 26, 1900, about eight months after the time limit for filing had expired, and was not signed by the -presiding judge, nor presented to him, until October 17, 1900, twenty-one days after it had been filed as a bill of exceptions. For at least two good reasons, the bill of exceptions, embracing the evidence, is not in the record. See Utterback v. State, 153 Ind. 545, 548; Makepeace v. Bronnenberg, 146 Ind. 243, 249; Chicago, etc., R. Co. v. Cason, 151 Ind. 329.

Judgrpent affirmed.