57 Ind. App. 558 | Ind. Ct. App. | 1914
The transcript was filed January 20, 1914. On March 27, appellees filed their verified motion to dismiss the appeal, praying also for an order that the transcript
The precipe, omitting caption and signature, is as follows: “To Charles E. Edwards, clerk of Hendricks Circuit Court. You are hereby requested to prepare a transcript of the record of the proceedings in the above entitled cause, and to include therein all papers and pleadings filed and on file, the order book entries of all orders and rulings, except the final judgment, special findings of the court and conclusions of law, in the above entitled cause, and certify to the same, to be used on appeal to the Appellate Court in the State of Indiana.” The clerk’s certificate to the transcript, omitting caption and signature, is as follows: “I, Charles E. Edwards, clerk of the Hendricks Circuit Court of Hendricks County, Indiana, do hereby certify that the above and foregoing transcript contains full, true, and correct copies of all the papers filed and entries of proceedings had in the above entitled cause, as appears from the files and records in my office. I further certify that I have incorporated in this transcript the original bill of exceptions containing the evidence in said cause, instead of a copy thereof, all as requested by the above and foregoing precipe. In witness whereof, I have hereunto set my hand and affixed the seal of said court, at my office in the city of Danville, Ind., this 17th day of January, 1914.” It will be observed that the precipe expressly excepts the final judgment, special findings and conclusions of law. The certificate purports to accredit copies of all the papers filed and entries made in said proceeding, including the original bill of exceptions containing the evidence, instead of a copy thereof, “all as requested by the above and foregoing precipe”.
We hold that the final judgment, special findings and conclusions of law are not in the record. We base our decision on the fact that they are excepted in the precipe. We do not decide the question of whether in the absence of such exception in the precipe such matter might be held to be included within the scope of the general language of the precipe, as incidental to the matter thereby called for. We decide nothing respecting the bill of exceptions containing the evidence. The final judgment not being in the record, the appeal must be dismissed. Gray v. Singer (1894), 137 Ind. 257; 36 N. E. 209, 1109; Stephenson v. Gillespie (1899), 23 Ind. App. 187, 55 N. E. 106; Elliott, App. Proc. §96.
Appeal dismissed.
Note. — Reported in 105 N. E. 172. As to scope and effect of writs of error, see 91 Am. Dec. 193.