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637. Exception defined.

Exceptions can only be taken to decisions of courts upon matters of law. Southern Ind. Ry. Co. v. Fine, 163 Ind. 617.

638. Exception, time for taking, filing bill.

Exceptions to rulings of the court must be taken at the time the rulings are made, but time may be given in which to reduce the exception to writing, but not beyond the term without special leave. Citizens R. R. Co. v. Marvil, 161 Ind. 506.

Exceptions to conclusions of law on special findings of facts must be taken at the time such conclusions are announced. Repp v. Lesher, 27 App. 360.

An exception to the overruling of a motion for a new trial must be taken when the ruling is made, and can not be taken at a subsequent time. Tecumseh Mills v. Sweet, Dempster Co., 25 App. 284.

Exceptions to rulings must be reduced to writing and filed during the term at which the ruling is made, unless time is given to file the bill of exceptions after the term. Taylor v. Canaday, 155 Ind. 671; Citizens R. R. Co. v. Marvil, 161 Ind. 506.

If a bill of exceptions is filed after the term at which a ruling is made, it must appear by the record that time was given within which the bill might be filed, and that it was filed within the time given. Taylor v. Canaday, 155 Ind. 671; Citizens R. R. Co. v. Marvil, 161 Ind. 506.

What will constitute a sufficient showing to entitle a party to have a bill of exceptions signed after the expiration of the time given in which to file bills when the presentation of bills to the judge was prevented by his absence from the state. Lengelson v. McGregor, 162 Ind. 258.

If a motion for a new trial is overruled at a term subsequent to the one at which the trial was had, leave given to file bills of exceptions must be given at the time the motion is overruled. Citizens R. R. Co. v. Marvil, 161 Ind. 506.

In order to make writings a part of a bill of exceptions they must be copied into the bill before it is signed, or else the place for their insertion in the bill must be designated by a "here insert." Tilden v. Louisville Co., 157 Ind. 532.

Appellate courts take judicial notice whether a person who signs a bill of exceptions is the regular judge of one of the courts of the state. Indianapolis Ry. Co. v. Lawn, 30 App. 515.

638a. Original bills, use on appeal.

Original bills of exception containing the evidence may be made a part of the record on appeal in criminal actions. Dunn v. State, 162 Ind. 174.

If a bill of exceptions containing the evidence given on the trial of a cause also contains other matters, the clerk has no authority to detach such evidence from the bill and insert it in a transcript for appeal and then copy the other portions of the bill in the transcript. Mankin v. Pennsylvania Co. 160 Ind. 447.

An original bill of exceptions containing the evidence can only be made a part of the transcript on appeal when the clerk is requested to include such bill in the transcript by the party appealing. Chestnut v. Southern Ry. Co. 157 Ind. 509.

Written directions to a clerk to make out a transcript of the proceedings in cause for an appeal, will not authorize such clerk to include in such transcript an original bill of exceptions containing the evidence. Chestnut v. Southern Ry. Co., 157 Ind. 509; Berry v. Chicago Ry. Co., 158 Ind. 668; McCabe v. Browder, 29 App. 362.

If the evidence is properly made a part of the record by a bill of exceptions, and such bill is included in the transcript on appeal, a statement in the certificate of the clerk to the transcript that a transcript of the evidence is included in the record does not prevent the evidence from being a part of the record. Oster v. Broe, 161 Ind.

113.

Instructions to a jury can not be made a part of the record on appeal by the transmission to the appellate court of the original bill of exceptions containing such instructions. Andrysiak v. Satkoski, 159 Ind. 428; Hamilton v. Estate of Hamilton, 26 App. 114; Prudential Ins. Co. v. Sullivan, 27 App. 30; Getchel v. Chicago Ry. Co., 29 App. 410.

If instructions to the jury are included in a bill of exceptions containing the evidence, and all of such bill except the evidence is copied into the transcript, such instructions will be a part of the record on appeal. South Chicago Ry. Co. v. Zerler, 31 App. 488.

If the longhand manuscript of the evidence is filed by the official reporter with the clerk, and such evidence is inserted in a bill of exceptions which is approved and signed by the judge within the time given, and is then filed in the office of the clerk, such evidence becomes a part of the record. Hamilton v. Estate of Hamilton, 26 App. 114.

It is not necessary that the manuscript of the evidence taken by an official reporter should be filed with the clerk before it is inserted in a bill of exceptions. Blair Co. v. Rose, 26 App. 487.

640. Exceptions, noting on record.

If exceptions can be taken by having the same entered on the record, then such exceptions can not be taken and shown by a bill of exceptions. Cooney v. American Ins. Co., 161 Ind. 193.

Exceptions to conclusions of law stated on a special finding of facts can not be taken by a bill of exceptions. Cooney v. American Ins. Co., 161 Ind. 193.

641. Bills of exception, signing, filing.

When exceptions may be shown by an entry of record without a bill of exceptions, then such exceptions can not be shown by a bill of exceptions. Cooney v. American Ins. Co., 161 Ind. 193.

Under what circumstances a party will be entitled to have a bill of exceptions signed after the time given to file bills has expired and the presentation of such bill to the judge within such time was prevented by the absence of the judge from the state. Lengelsen v. McGregor, 162 Ind. 258.

When judges may be compelled by mandate to sign bills of exception. Bogue v. Murphy, 25 App. 102.

The date when a bill of exceptions is presented to the judge must be stated in the bill, an indorsement of such date on the bill being insufficient. Surber v. Mayfield,

156 Ind. 375.

It must be shown by the record that bills of exception were filed with the clerk after they were signed by the judge. Veneziani v. Morrissey, 161 Ind. 391; Prudential Ins. Co. v. Sullivan, 27 App. 30.

The filing of a bill of exceptions, and the date thereof, must be shown either by a record entry or by the certificate of the clerk. Howe v. White, 162 Ind. 74. What statements in a certificate of the clerk as to the signing and filing of a bill of exceptions will be sufficient to show that the bill was filed after being signed by the judge. Howe v. White, 162 Ind. 74.

[Acts 1905, p. 45. In force April 15, 1905.]

641a. Extending time to file bills.-1. That whenever time has been given in which to file any bill of exceptions, the court, if in session, or the judge thereof, in vacation, may, on a proper showing under oath. either in term time or vacation, grant an extension of time. And it shall be the duty of such court or judge to grant a reasonable extension of time to file a bill of exceptions containing the evidence: Provided, The failure to tender such bill of exceptions is due to the inability or failure of the court reporter to prepare and furnish a transcript of the evidence. If the extension of time is granted by the judge in vacation, such action may be indicated by a recital in the bill of exceptions itself, but if such extension is granted in term time, the same may be indicated by an order of court, duly entered on the order book, of which all parties to such suit shall take notice: Provided, Such application for such extension must be made prior to the expiration of the time first given.

[Acts 1903, p. 338. In force April 23, 1903.]

641b. Motions in writing.-2. That every motion to insert new matter or to strike out any part or parts of any pleading, deposition, report or other paper in the cause shall be made in writing and shall set forth the words sought to be inserted or stricken out.

See section 544a for section 1 of this act.

Motions required by this section to be in writing can not be made in any other manner. Crystal Ice Co. v. Morris, 160 Ind. 651.

641c. Minutes, record, oral motions.-3. Every pleading, motion in writing, report, deposition or other paper, filed or offered to be filed, in any cause or proceeding, whether received by the court, refused or stricken out, shall be a part of the record from the time of such filing or offer to file. Any order or action of the court in respect to any such pleading, motion in writing, report, deposition or other paper, and every exception thereto taken by any party shall be entered by the clerk on the minutes or record of the court, and the same when so entered shall be a part of the record without any bill of exceptions. Every oral motion, and the ruling of the court thereon and the exceptions taken thereto, shall be entered upon the record or minutes of the court and shall be a part of the record without any bill of exceptions.

Written motions and exceptions to rulings when properly made and entered are a part of the record without a bill of exceptions. Chrystal Ice Co. v. Morris, 160 Ind.

651.

641d. Evidence in bill.-4. That in an appeal in any civil action to the supreme court or the appellate court from any judgment, decree or interlocutory order of a circuit court or superior court, or of any Judge of such court in vacation, it shall not be necessary for the bill of exceptions to contain all of the evidence given in the cause or proceeding, unless the decision of the court, or the verdict of the jury, shall be called in question as being contrary to law, or not sustained by sufficient evidence.

641e. Statement on ruling, evidence.-5. That in all other civil actions, for the purpose of presenting for decision any question in respect to error alleged to have occurred upon the trial, the bill of exceptions shall be sufficient, if it contain a clear statement of the ruling or matter called in question, together with a succinct recital of the substance of such part of the evidence and proceedings as shall be necessary to advise the supreme court or the appellate court, as the case may be, of the pertinency or materiality of the matters sought to be reviewed on the appeal.

641f. Sufficient for review.-6. That unless the bill of exceptions shall contain matter showing that the order, ruling, action, decision or matter called in question was harmless to the party appealing, or that the error, if any, was cured or corrected by the trial court, the bill of exceptions prepared as herein provided shall be sufficient to bring the matter thereby presented before the court for review in as ample form as though such bill of exceptions contained all of the evidence and all the proceedings upon the trial.

641g. Original bill, praecipe, transcript, certificate.-7. That in case an original bill of exceptions shall be incorporated into the transcript of the record of any cause on appeal to the supreme court or the appellate court, such original bill of exceptions shall, in every case, constitute and be considered as a part of such transcript, the same as if copied therein by the clerk, whether such original bill or a copy thereof be specified in the praecipe, or otherwise directed to be incorporated

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into such transcript. Any party or person desiring a transcript of the record of any cause or proceeding, or of any part thereof, for appeal, may file with the clerk a written praecipe therefor. If such party or person desire a transcript of the entire record, it shall be sufficient to so state in the praecipe; if a complete transcript be not desired, then such party or person shall indicate in the praecipe the parts of the record desired. And in the event that any other party to the judgment shall desire a complete transcript of the record upon such appeal, or that any part or parts of the record not required by the praecipe so filed shall be included in the transcript, he may file with the clerk his praecipe in like form. Such praecipe shall constitute a part of the record, and in obedience thereto the clerk shall include in the transcript every paper and entry in the cause thereby requested to be included, and every paper and entry by this act declared to be a part of the record shall be considered by the supreme court or the appellate court on appeal, when so included in the transcript, the same as though the matter had been made a part of the record by a bill of exceptions. The praecipes shall be copied in the transcript immediately before the certificate of the Clerk and the certificate of the Clerk shall be in substantially the following form:

State of Indiana, County of
Clerk of the

I,

SS:

Circuit Court within and for said county and State, do hereby certify that the above and foregoing transcript contains full, true and correct copies, or the originals, of all papers and entries in said cause required by the above and foregoing praecipe (or praecipes).

Witness my hand and the seal of said court, at

this

day of

190

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Clerk.

This section does not repeal section 661, Burns' R. S. 1901, concerning transcripts for appeal. Rutherford v. Prudential Ins. Co., 32 App. 423.

Under this section an original bill of exceptions containing the evidence becomes a part of the record on appeal although not mentioned in the praecipe when the certificate of the clerk complies with this section. Chicago Ry. Co., v. Cunningham, 33 App. 145.

641h. Weighing evidence on appeal.-8. In all cases not now or hereafter triable by a jury, the supreme and appellate courts shall, if required by the assignment of errors, carefully consider and weigh the evidence and admissions heard on the trial when the same is made to appear by a bill of exceptions setting forth all the evidence given in the cause, and if on such appeal it appears from all the evidence and admissions that the judgment appealed from is not fairly supported by, or is clearly against the weight of the evidence, it shall be the duty of such court to award judgment according to the clear weight of the evidence, and affirm the judgment or return said cause to the trial court with in

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