Huffman v. Thompson

Appellant filed a complaint for partition of real estate, to which there were answers by appellees alleging indivisibility.

The court on the trial found the land not susceptible of division without damage to the owners, and from that judgment this appeal is prosecuted on the sole ground of the insufficiency of the evidence.

1. No .bill of exceptions was filed at any time. There is a paper attached to the transcript of the pleadings, following the clerk’s certificate, which is called a transcript of the evidence. It has no heading, or similitude to a bill of exceptions, and there is no identification of any character. It begins abruptly by a supposed admission of the parties on the trial, followed by what we assume was evidence given on the trial, followed by a certificate of the reporter that it is the longhand transcript of the evidence offered and given, and the objections, the ruling of the court, etc., and exceptions, and that it contains all the evidence given in the cause. This is followed by a certificate of the trial judge, “that the foregoing transcript of the evidence filed by Harriet D. Frazer, official shorthand reporter * * * on the 28th day of April, 1909, is a full, true, and *368complete transcript of the evidence had in said cause.” It is not shown where it was filed, or that it contained all the evidence in the cause, nor is it anywhere shown that it was filed after it had been signed by the judge. It has none of the requisites of a bill of exceptions. It is not even identified in any way, or certified by the clerk, and was filed nine days after his certificate bears date.

Counsel for appellant have evidently proceeded under §§1689, 1690 Burns 1908, Acts 1899 p. 384, but they have overlooked the fact that §1690, supra, has been declared unconstitutional '(Adams v. State [1901], 156 Ind. 596, 59 N. E. 24); but they have not even complied with that section.

2. 3. If the certificate of the trial judge could be held to be a certification that the transcript contained all the evidence given in the cause, the paper was not even filed as a part of the record in the ease, after it was so certified. It is not necessary that a transcript of the evidence should be filed in the clerk’s office before being incorporated in a bill of exceptions. White v. State (1900), 153 Ind. 689, 54 N. E. 763; Minnick v. State, ex rel. (1900), 154 Ind. 379, 56 N. E. 851; Diezi v. G. H. Hammond Co. (1901), 156 Ind. 583, 60 N. E. 353. But it must be shown by the record that the transcript has been incorporated into the bill of exceptions, that it has been signed by the trial judge, and that it was filed after being so signed. Ewbank’s Manual §32; Black v. State (1908), 171 Ind. 294, 86 N. E. 72; Howe v. White (1904), 162 Ind. 74, 69 N. E. 684; Lane v. Bowes (1904), 32 Ind. App. 330, 67 N. E. 1002. In addition, coun sel have not set out the evidence in their brief, as required by rule twenty-two of this court, but have drawn their conclusions as to what the evidence is, and cited the pages where they say it may be found.

The object of the rule is that each member of the court may know from the statement in the brief what the evidence was, without resort to the record.

Rule twenty-two of the Supreme Court.

*369There is nothing presented to us, and the judgment is affirmed.

Note.—Reported in 9S N. E. 113. See, also, under (1) 3 Cyc. 24, 27; (2) 2 Cyc. 1038; (3) 2 Cyc. 1013.