Herrin v. Olvey , 42 Ind. 573 ( 1873 )

Worden, J.

Partition of lands. In the petition it was alleged that Nancy Herrin, who was one of the defendants, was the owner of an undivided one-fifth of two-thirds of the land. Andrew Alford, who was made a defendant, filed a paper which may be regarded as a cross complaint against Nancy, alleging that she, in conjunction with her husband, had executed to him a quitclaim deed for her interest in the land, but that a mistake had been made in the execution of the deed, the land being therein misdescribed. Nancy, by her guardian ad litem, answered the cross complaint, first, by general denial, and, second, in avoidance. The second paragraph was stricken out on motion of Alford, and Nancy, by her guardian ad litem, excepted.

This ruling is assigned for error. As the pleading thus stricken out is not made a part of the record by a bill of exceptions, we can not notice it. We must presume, therefore, that the ruling in striking it out was correct.

. After the pleadings had been filed, Nancy, by her guardian ad litem, moved the court, in writing, to transfer the cause to the circuit court, “ for the reason that the only issue between the defendants Andrew Alford and Nancy Herrin involves the title to real estate.”

The motion was overruled. To this ruling Nancy excepted, as the record informs us, but there is no bill of exceptions in the record embodying the motion, or showing the ground upon which it was decided. We are of the opinion that no question is properly before us involving the correctness of the ruling on the motion. These are all the questions presented by the assignment of errors and the brief of counsel for the appellants.

W. O'Brien and R. Graham, for appellants. D. Moss and F. M. Trissal, for appellees.

The judgment below is affirmed, at the costs of Herrin and wife, who alone have assigned error.