39 Ind. 161 | Ind. | 1872
The appellees sued the appellant on the following instrument:
“This agreement witnesseth that James A. Rankin has this day bargained and sold to Samuel H. Stewart one hundred head of smooth, fat hogs, for eight dollars and fifty cents per hundred pounds; the hogs to be delivered at John Jackman’s scales, at Milroy, 'Rush county, Indiana, between the 1st and the 17th days of October, 1870. Said hogs shall average not less than two hundred and sixty-five (265) pounds each; to be smooth, well-corn-fed hogs.
“The said Stewart agrees to pay the sum of money per hundred pounds above specified for said hogs, and now pays one hundred dollars on this contract, the receipt whereof is hereby acknowledged by the said Rankin. There are to be no sows with pigs or stags among said hogs.
“Witness our hands this Iith day of August, 1870.
“James A. Rankin,
“Sam. H. Stewart.”
It was averred in the complaint, that at the time of the execution of the above contract,- the appellees were partners, and were jointly interested therein, although the contract was made in the name of James A. Rankin alone; that on the 1st day of October,-1870, the defendant notified the plaintiffs that he would be ready to receive said hogs at
To this complaint the appellant answered by a denial, and there was an agreement to give in evidence under such denial all matters that could be specially pleaded. The cause was tried by the court, and resulted in a finding for the plaintiffs. The court overruled a motion for a new trial, and rendered judgment on the finding, and the appellant excepted.
The appellant has assigned for error the overruling of the motion for a new trial. The principal reason assigned for a new trial was the exclusion of competent and legal evidence offered by the appellant.
No question arises in the case, unless the evidence is in the record by bill of exceptions. It is maintained by the .appellees that the evidence is not properly in the record. The bill of exceptions is as follows.
“James A. Rankin and Darius C. Williams v. Samuel H. 'Stewart. Decatur Circuit Court, fall term, 1870.
[Seal] "J. M. Wilson.”
Following the above bill of exceptions in the transcript, the clerk has copied what purports to be the evidence admitted and that offered and excluded, with exceptions to the ruling of the court.
It is quite obvious that the judge signed a bill of exceptions in blank, probably intending that opposing counsel should afterward agree upon the evidence, and have it inserted in the appropriate places in the bill, over his signature; but the clerk, instead of filling the blanks in the bill of exceptions with the evidence, has set out the evidence in the transcript, and then filled the blanks in the bill of exceptions with references to the pages of the transcript where the evidence would be found.
In making out a bill of exceptions, where the purpose is to make a part of the record a written instrument or docu
It is provided by section 346 of the code, 2 G. & H. 209, that, “where the decision is not entered on the record, or the grounds of objection do not sufficiently appear in the entry, the party excepting must reduce his exception to writing, and present it to the judge for his allowance and signature. If true, the judge shall sign it, whereupon it shall be filed with the pleadings as a part of the record, but shall not be spread at large on the order book. If the writing is not true, the judge shall correct it, or suggest the correction to be made and sign it.”
By the above section of the code, it is made the duty of the party excepting to reduce his exception to writing, and present it to the judge for his allowance and signature; and it is made the duty of the j udge to examine the bill of exceptions and see whether it contains the truth, and if it does, he must sign it, but if it does not, he must make it speak the truth, and then sign it. A judge may very properly sign a bill of exceptions with a blank, where the purpose is to make a part of the record some written instrument or documentary evidence, but he should never sign a bill of exceptions, purporting to embody the parol testimony until such testimony has been written out in full in such bill of exceptions, and he has convinced himself, either by the consent of opposing counsel or a personal examination, that it contains the truth,
The evidence not being in the record, there is no question presented for our decision.
■ The judgment is affirmed, with costs.