Opinion
No. 18,378.
Filed December 1, 1952. Rehearing denied January 14, 1953. Transfer denied March 6, 1953.
1. APPEAL — Dismissal of — Grounds For — Jurisdictional Questions. — Where appellees contended in their motion to dismiss that appellants attempted to appeal from two separate judgments by one assignment of error, that the transcript did not contain a bill of exceptions containing the evidence, nor the affidavits attached to appellants' motion for new trial, such motion presented no jurisdictional question and must be overruled. p. 319.
2. APPEAL — Record — Bill of Exceptions Containing the Evidence — Dismissal of Appeal. — Where the transcript contained no bill of exceptions and affidavits in support of motion for a new trial on ground of newly discovered evidence were not in record, no question is presented to the court on appeal under specifications in the motion for new trial, the overruling of which was assigned as error. p. 319.
From the Marion Circuit Court, Lloyd D. Claycombe, Judge.
Appellants, Harry and Minnie Yateman, commenced action to quiet title and subsequently appellees, Fernie and Eleanor King filed a suit for possession and causes were consolidated for trial and judgment was for appellees in each case.
Affirmed. By the court in banc.
John L. Mattocks and Howard R. Hooper, both of Indianapolis, for appellants.
John K. Ruckelshaus, John C. O'Connor and Ruckelshaus, Reilly Rhetts O'Connor, of Indianapolis, for appellee.
Appellants commenced this action by filing in the Circuit Court their suit to quiet title to the real estate involved in this action. Subsequently appellees filed their suit for possession of said real estate. Thereafter, on motion of appellants, the latter cause was transferred and consolidated for trial with appellants' action in the Circuit Court of Marion County. Judgment in favor of appellees in each case.
The error assigned here is the overruling of appellants' motion for a new trial. This motion has four specifications. The first specification is not a proper ground for a new trial, even as enlarged by Rule 2-6, Rules of the Supreme Court of Indiana. The second asserts appellants, after the trial, discovered new and additional material evidence which they could not have discovered with reasonable diligence before or during the trial. The next specifications assert the decision is not sustained by sufficient evidence and is contrary to law. The latter requires a consideration of the evidence.
After appellants filed their brief in this cause appellees filed their motion to dismiss. As grounds for dismissal they assert appellants have attempted to appeal from two separate judgments by one assignment of error. They further contend the transcript does not contain a bill of exceptions containing the evidence or any part thereof, nor the affidavits attached to appellants' motion for a new trial, and therefore no question with respect to the overruling of the motion for a new trial is presented.
Appellees' motion presents no question that is jurisdictional under the circumstances in this case, and therefore must be overruled. General Finance Corporation, a Corporation v. 1. Donald Smith (1952), 123 Ind. App. 302, 109 N.E.2d 96; Public Service Commission of Indiana, etc. v. Indiana Bell Telephone Company (1952), 232 Ind. —, 108 N.E.2d 889.
However, an examination of the record discloses the transcript does not contain a bill of exceptions. The affidavits in support of the specification of newly discovered evidence in the 2. motion for a new trial are not part of the record. The City of Huntington v. Townsend (1902), 29 Ind. App. 269, 273, 63 N.E. 36; Aetna Insurance Co. v. LeRoy (1895), 15 Ind. App. 49, 51, 43 N.E. 570; Hoskinson v. Cavender (1895), 143 Ind. 1, 42 N.E. 358.
Therefore, appellants have failed to present a question herein.
Judgment affirmed.
NOTE. — Reported in 109 N.E.2d 441.