Price v. Mitchell , 70 Ind. App. 671 ( 1919 )

Nichols, P. J.

This was an action commenced in the Marion Superior Court, and on change of venue tried in the Hamilton Circuit Court, for the possession of, and damages for the detention of, certain real estate described in the complaint, and located in Marion county, Indiana. The appellant filed an answer in general denial to the complaint, and the cause, being at issue, was submitted to the court for trial. There was a finding for the appellee, and that she was entitled to the immediate possession of the real estate described in the complaint, and damages for the detention thereof in the sum of $264. After a motion for a new trial, which was overruled, appellant prosecutes this appeal.

1. The only error relied upon for reversal is the action of the court in overruling appellant’s motion for a new trial. The errors there assigned can only be presented to this court by a bill, or bills, of exceptions. The only reference to such an instrument is found in the following language, taken from appellant’s brief: “Subsequent to the filing of said bond, appellant failed to file his transcript and bill of exceptions within sixty days after giving said bond.” While the appellant makes some statements of what purports to be evidence, there is no proper showing of any kind whatever that there was any evidence in the cause. Without the evidence and proceedings at the trial the case must be affirmed. Notwithstanding this condition of the record on appeal, appellee’s attorneys, four in number, with an appearance of magnanimity that is beyond our comprehension, plainly inform the court that “the evidence is in the record,” and then proceed to supplement the purported evidence contained in appellant’s brief with additional statements thereof. It is a gen-eral rule of law that admissions or statements of counsel, as to matters which do not otherwise appear in the record will not be considered by the Appellate Court. 4 C. J. 557.. Without considering the applicability of the principle to the case at bar, we have examined the purported evidence as presented by counsel, both for appellant and appellee, and conclude that it is sufficient to sustain the finding of the court. The deciding question involved is as to the right of appellant.to occupy the premises involved, and free of rent, which he undertook to establish by the following instrument:

“Exhibit No. 3.

“I agree with Mattie Price if she and her husband will build two rooms for me so I will be to myself, when the two rooms are completed they can have the front part of the house without rent as long as I live if they will help me to build two rooms I will put in one hundred forty dollars and Mattie Price and her husband to furnish the balance of the money.

“Witness Mary B. Mitchell

Mattie Price

A. W. Price

Lucy Porter

Wm. Cook.”

2. The appellee strenuously insists that she did not sign this instrument, and that it- is a forgery, and so testified, as she had a right to do. No pleading was founded upon it, and therefore §370 Burns 1914, §364 R. S. 1881, does not apply. It does not appear by the record that such instrument was ever introduced in evidence. The trial court may have refused to consider it upon either of these grounds, and this court would not be justified in disturbing such trial court’s conclusion. The finding of the court is sustained by sufficient evidence. There are no reasons discussed as to why the decision of the court is contrary to law, nor is the question of excessive damages presented.

The judgment is affirmed.