Weaver v. Kennedy

This proceeding was brought by appellants, under section 396, R. S. 1881, section 399, R. S. 1894, to set aside a default and decree taken by appellee against appellants. The court below after hearing the evidence denied the application, and over a motion for a new trial rendered a judgment for costs against appellants.

The only error assigned is the overruling of appellants’ motion for a new trial. The motion for a new trial assigned two reasons : 1, that the decision of the court is not sustained by sufficient evidence, and 2, that the decision is contrary to law.

The error assigned requires a consideration of the evidence. Appellee insists that this court cannot consider the evidence for the reason that it affirmatively appears from the bill of exceptions that it does not contain all the evidence, citing Ward v. Bateman, 34 Ind. 110; Miles v. Buchanan, 36 Ind. 490 ; Morrow v. State, 48 Ind. 432; Powers v. Evans, 72 Ind. 23; Johnson v. Wiley, 74 Ind. 233; Shimer v. Butler University, 87 Ind. 218; Clay v. Clark, 76 Ind. 161; Collins v. Collins, 100 Ind. 266 ; Thames Loan and Trust Co. v. Beville, 100 Ind. 309; Jennings, Guar., v. Durham, 101 Ind. 391; French, Admr., v. State, ex rel., 81 Ind. 151; Fellenzer v. Van Valzah, 95 Ind. 128; Seymour Woollen, etc., Co. v. Brodhecker, 130 Ind. 389, p. 391.

It is settled by the authorities cited by appellee that if a bill of exceptions purports to contain all the evidence,. yet if it shows upon its face that it does not, this court will not consider the sufficiency of the evidence to sustain the verdict of the jury or-finding of the court.

The affidavit of appellee was read in evidence but was not copied into the bill of exceptions, and in the place *442■where it should have been copied are the words ‘ ‘(here insert.)”

It follows, therefore, that this court cannot consider the error assigned, as the same depends for its proper determination upon the evidence.

Judgment affirmed.