Opinion
No. 13,075.
Filed July 19, 1928.
1. EXCEPTIONS, BILL OF — Tendering to Judge for Approval — Grant of Time — Overruling Motion for New Trial. — When a bill of exceptions containing the evidence is not filed at the term of court at which the motion for a new trial was overruled, the record must show that an exception was taken at the time the motion was overruled, and that time beyond the term for presenting the bill of exceptions to the judge for his approval was then granted. A grant of time on the following day is too late. p. 671.
2. APPEAL — Record — Evidence — Bill of Exceptions — Filing too Late. — Where the record shows that time for presenting bill of exceptions containing the evidence to the judge for his approval was not granted until the day following the ruling on the motion for a new trial, the evidence is not in the record where the bill was not filed until the next term, the grant of time not being made at the time specified by the statute (§ 685 Burns 1926). p. 671.
3. EXCEPTIONS, BILL OF — Tendering to Judge for Approval — Grant of Time — Term-time Appeals. — The statute relating to the granting of time to present a bill of exceptions containing the evidence to the judge for his approval (§ 685 Burns 1926) applies to term-time appeals as well as to vacation appeals. p. 672.
From Vanderburgh Probate Court; Robert N. Tracewell, Special Judge.
Action by Creed Wells against the Chicago and Eastern Illinois Railway Company. From a judgment for plaintiff, the defendant appeals. Affirmed. By the court in banc.
Frank H. Hatfield, William C. Welborn and Louis L. Roberts, for appellant.
Benjamin F. Zieg, for appellee.
Appellee recovered a judgment against appellant for damages on account of personal injuries alleged to have been sustained by reason of appellant's negligence.
The errors relied on for reversal require a consideration of the evidence, which appellee insists is not in the record. Appellant's motion for a new trial was overruled May 11, 1927. Appellant excepted to this ruling at the time, but did not ask for and was not at that time given time beyond the term within which to file a bill of exceptions. On the next day, May 12, appellant prayed an appeal to this court and eighty days was then given within which to file a bill of exceptions. The bill was presented to the judge for his approval and was signed by him and filed within the time allowed but not until the next term of court.
This court and the Supreme Court have uniformly held that, when a bill of exceptions containing the evidence is not filed at the term of court at which the motion for a new trial is 1, 2. overruled, the record must show that, at the time the motion is overruled, an exception was then taken and that time beyond the term for presenting the bill of exceptions to the judge for his approval was at that time granted. The record shows that time beyond the term for presenting bill of exceptions was not given until a day subsequent to the day on which the motion for a new trial was overruled. This was too late. It follows that the evidence is not in the record. See Shaw v. Union Trust Co. (1923), 79 Ind. App. 277, 137 N.E. 895; Bigham v. National Brookville Bank, Admr. (1928), ante 371, 161 N.E. 567.
Appellant contends that since this is a term-time appeal, the rule announced in the cases just cited is not controlling. We hold otherwise. The statute relating to the taking of 3. exceptions and the time when the same shall be reduced to writing applies to term-time appeals as well as to vacation appeals.
Judgment affirmed.