
    Makeever v. Blankenbaker et al.
    [No. 4,851.
    Filed March 29, 1804. ]
    Appeal and Error. — Precipe.—Bill of Exception Not Included in Precipe. — Prior to the Act of March 9, 1903 (Acts 1903, p. 338), if the precipe filed with the clerk of the trial court did not require him to include in the transcript the original bill of exceptions, such bill of exceptions, although otherwise properly included in the transcript, can not be considered on appeal, and is not a part of the record in the Appellate Court.
    Erom Jasper Circuit Courts J". C. Nye, Special Judge.
    Proceeding 'by William B. Blankenbaker and others to establish a highway to which John Makeever filed a remonstrance. Erom a judgment in favor of petitioners, remonstrant appeals.
    
      Affirmed.
    
    
      J. F. Wilson, B. F. Ferguson and W. H. Parkison, for appellant.
    
      
      Frank Foltz, G. G. Spitler and AT. R. Kurrie, for appellees.
   Henley, C. J.

This is an appeal from the judgment of the Jasper Circuit Court establishing a highway.

The questions presented by the assignment of error and not waived by failure to discuss them all arise under the motion for a new trial, and require the presence of the evidence for their proper determination. Counsel for appellee contend that the evidence can not be considered by this court because the bill of exceptions containing the evidence is not properly a part of the record. The precipe filed by appellant with the clerk of the circuit court did not direct or request such clerk to certify to this court the original bill of exceptions containing the evidence. It has been repeatedly held that only such papers and entries as are designated in the precipe are properly a part of the record on appeal, and the precipe in the case at bar did not in any way direct or request the clerk to certify to this court the original bill of exceptions containing the evidence. Chestnut v. Southern Ind. R. Co., 157 Ind. 509; Johnson v. Johnson, 156 Ind. 592; Brown v. Armfield, 155 Ind. 150; McCaslin v. Advance Mfg. Co., 155 Ind. 298.

The transcript in the case at bar was filed in this court on February 21, 1903, and the act of March 9, 1903 (Acts 1903, p. 338), was not then in force. The certificate of the clerk shows that the record contains the original bill of exceptions embracing the evidence. The evidence can not be considered for any purpose, and the record does not present any available error.

Judgment affirmed.  