48 Ind. App. 511 | Ind. Ct. App. | 1911
Action by Elijah S. Wallace, against William H. Coons, for damages on account of the breach of a written contract for the sale of a carload of hogs. The complaint was in two paragraphs. In brief, the averments of the first
The second paragraph sets forth practically the same preliminary facts, and avers that Wallace agreed to sell the hogs to Coons; that he kept the hogs ready to be weighed at Indianapolis and sold to Coons, and that he sold the hogs to other parties at a loss of $200.
A demurrer to each paragraph of the complaint was overruled, and an answer in general denial was filed. The cause was tried without a jury. The court made and filed a special finding of facts and stated its conclusions of law thereon, to the effect that plaintiff take nothing in his action,
Appellant insists that his motion for a new trial should have been sustained, for the reasons that the decision of the court is not sustained by sufficient evidence and is contrary to law.
The precipe for the transcript filed by appellant, omitting the title of the cause, is as follows: “The clerk of the Johnson Circuit Court will prepare and certify a full, true and complete transcript of all the papers, orders, evidence and proceedings, filed and had in the above-entitled cause, to be used on appeal to the Appellate Court of Indiana, as follows, to wit: * * * (5) The evidence given in said cause.” The certificate of the clerk, as amended, the amendment having been authorized by this court on October 26, 1909, is as follows: “I, Joseph A. Schmith, clerk of the Johnson Circuit Court, within and for said county and State, do hereby certify that the above and foregoing transcript contains full, true and correct copies of all papers and entries in said cause required by the above and foregoing precipe, and that said transcript contains the original bill of exceptions, containing the evidence introduced in said cause, as required by said precipe, and as directed by the plaintiff herein named.” He also certifies to the filing on May 23, 1908, by the stenographer, of the longhand transcript of the evidence, that is incorporated in the bill of exceptions and made a part of the transcript, and that the regular judge of the court signed the bill, and ordered it made a part of the record, that it was filed in the clerk’s office, and is the bill of exceptions contained in the transcript. Appellee earnestly insists that the bill of exceptions