43 Ind. App. 613 | Ind. Ct. App. | 1909
This is the second appeal of this cause by the appellant from a judgment against her in the trial court.
The only alleged error assigned is the overruling of appellant’s motion for a new trial. The appellee insists that no question is presented, for the reason that the motion for a new trial cannot properly be regarded as in the record, though it is set forth in the transcript on appeal.
The appellant filed a precipe for a transcript, which is copied into the record immediately preceding the clerk’s certificate. Omitting the caption, the precipe is as follows:
“To the Clerk of the Wells Circuit Court.
You are hereby directed and requested by the plaintiff in the above-entitled cause to make out a full, true and complete transcript in said cause for use on appeal in the Appellate Court of the State of Indiana, said transcript to embody the following: (1) The amended complaint and order-book entries as to filing thereof. (2) All answers thereto. (3) All demurrers. (4) All replies. (5) All demurrers thereto. (6) All the order-book entries made in said cause since and after the certified opinion of the Appellate Court on a former appeal, from the ruling on demurrer in said cause, was ordered spread of record, including the order-book entries relating to the trial of said cause. (7) The judgment rendered in said cause and the entry relating to an appeal therefrom. (8) The appeal bond filed and all entries relating thereto. (9) Also include the original bill of exceptions containing the evidence, and the rulings of the court with reference thereto, as filed in your office, and the transcript of the order-book entry showing the filing thereof. (10) This precipe.”
This is followed by the signature of the appellant’s attorneys. In his certificate to the transcript the clerk certifies “that the above and foregoing transcript is a full, true and complete transcript of the amended complaint, and all order-book entries as to the filing thereof,” etc., specifying the several parts of the record substantially as in the prec
If there were room for the indulgence of a presumption that any other order or direction for a transcript was given and obeyed in the making of the transcript before us than that embraced in the precipe before set forth, or if a copy of the motion for a new trial could be regarded as inserted in the transcript pursuant to this precipe, or any other allowable direction, yet it could not be said that the motion for a new trial was duly certified. The clerk has not certified to the transcript as a transcript of the record- of the cause in full, but he has certified only to certain parts of the record, not including a motion for a new trial.
No error is presented. The judgment is affirmed.