Opinion
No. 13,182.
Filed March 5, 1929.
1. EXCEPTIONS, BILL OF — Presentation to Judge for Approval — Date Must be Stated in Bill — Cannot be Shown by Order-book Entry. — Section 686 Burns 1926, requiring the date of presenting a bill of exceptions to the judge for his approval to be stated in the bill of exceptions is mandatory, and the time of presenting it cannot be shown by an order-book entry. p. 644.
2. APPEAL — Bill of Exceptions — Absence of Statement as to Date of Presentation to Judge — Evidence Not in Record. — Where there is no statement in a bill of exceptions as to the time of presenting such bill to the judge for approval, the evidence is not in the record, and no question is presented on appeal as to the admission or exclusion of evidence. p. 644.
3. EXCEPTIONS, BILL OF — Grant of Time for Presenting Bill to Judge — Must be Shown by Order-book Entry. — That time was granted for the presentation of a bill of exceptions to the judge for his approval (§ 685 Burns 1926) must be shown by an order-book entry. p. 644.
From St. Joseph Superior Court; Woodson S. Carlisle, Judge Pro tem.
Action by the South Bend Beverage and Ice Association against Erma H. Hoban, administratrix of the estate of Thomas M. Hoban, deceased. From a judgment for plaintiff, the defendant appeals. Affirmed. By the court in banc.
Samuel B. Pettingill, for appellant.
Jones Obenchain, for appellee.
Appellant's motion for a new trial was overruled July 6, 1927, by the regular judge, the cause having been tried by him, and thirty days time was given within which to present a 1, 2. bill of exceptions containing the evidence. There is an order-book entry to the effect that the bill of exceptions was presented to the regular judge July 28, 1927, for his approval. A purported bill of exceptions is found in the transcript, but there is nothing in such bill of exceptions showing that it was presented to the judge within the time allowed. It was signed by a judge pro tem August 16, 1927, and filed the same day. The statute, § 686 Burns 1926, Acts 1881 [Spec. Sess.] p. 240, provides that "The date of the presentation shall be stated in the bill of exceptions." This statute is mandatory, and on the authority of Rigler v. Rigler (1889), 120 Ind. 431, 22 N.E. 776, we hold the evidence is not in the record, and that no question is presented as to the admission or exclusion of evidence. The bill of exceptions not having been signed nor filed within the time allowed, Hale v. Matthew (1889), 118 Ind. 527, 21 N.E. 43, is not in point.
The fact that time was given must be shown by an entry in the order book. The fact of presentation and date of presentation to the judge for his approval must be shown in the bill of 3. exceptions. The only question presented which is not dependent on the evidence is the overruling of appellant's motion for a continuance filed during trial, and this was not error.
Judgment affirmed.