144 Ind. 379 | Ind. | 1896
The record in this case recites cer
This certificate, whether the original or a copy, is manifestly not within the transcript as certified by the clerk. If it ever had any connection with the agreed statement of facts, there is nothing in the
This is not an agreed case as authorized by section 562, R. S. 1894 (section 553, R. S. 1881); Witz, Admr., v. Dale, 129 Ind. 120; Citizens Ins. Co. v. Harris, 108 Ind. 392; Robertson v. Huffman, 101 Ind. 474; Pennsylvania Co. v. Niblack, 99 Ind. 149.
Upon the theory that the agreement as to the facts was to be substituted for the evidence in the case, and to be employed, instead of introducing in the regular way the oral and documentary evidence, a bill of exceptions would be necessary to present any question arising upon the evidence. See cases above cited. If this were not the theory of the proceeding employed, the motion for a new trial and the taking of time for the bill would not have been necessary. We cannot accept the record as purporting to contain a bill of exceptions, but if the material included in the transcript could be deemed to bear the form of a bill of exceptions, its filing in the clerk’s office, or at least the certificate of the clerk that it was a copy or the original bill,could not be dispensed with. Jamison v. State, ex rel., 13 Ind. App. 294.
The questions suggested by the motion for a new trial depend upon the evidence, and since the evidence is not in the record no available error is presented. The judgment of the circuit court is, therefore, affirmed.