Sherman v. Crothers
25 Ind. 417
Ind.
1865
Check Treatment
Ray, J.

The action of the court in refusing certain instructions, and in excluding evidence said to have been offered* by the appellants upon the trial, is assigned for error. No question is however presented by the record for our consideration.

The paper purporting to be the bill of exceptions containing the evidence was not filed within the time fixed by the court, and although, at the next term, and after the *418expiration of the time limited, the court granted, on appellant’s motion, additional time, still, no notice having been given to the appellee of the motion, the action of the court cannot avail the appellants. New Albany and Salem R. R. Co. v. Wilson, 16 Ind., 402; Noble v. Thompson, 24 Ind., 346. Whether such leave can avail the party when obtained upon proper notice or appearance, we do not decide.

'■Gregory, Hughes, and Wilson, Dye Harris, Hendricks, Hord and Hendricks, for appellant. D. Turpie, A. G. Porter, W. P. Pishback and JS. Harrison, ior appellee.

An affidavit is filed in this court, in which it is averred that it was agreed between certain of the attorneys for the appellants and appellee in the court below, that the paper might be filed after the time limited, and that no exception should be taken to the delay.- Counter affidavits are also filed. This issue of fact will not be passed upon by us. The paper containing the evidence cannot therefore be regarded as in the record. No exception was reserved to the giving or the refusal of instructions.

The judgment is affirmed, with two per cent, damages and costs.