On Petition for a Rehearing.
Morris, C.The appellant earnestly insists that a rehearing should be granted in this case, for the reason that the court, as he contends, overlooked, in deciding the case against him, a material part of the record. If in this he is right, a rehearing should be granted.
The bill of exceptions says : “The writ of restitution was-then read in evidence, and is in these words and figures, to-wit.” The writ is notin the bill of exceptions ,nor is its appropriate place designated otherwise than bjr the words above quoted. In making up the record the clerk did not regard the language above set out, as a direction to him by the court, to copy into the bill of exceptions the writ, and he did not do it. Subsequently, upon a writ of certiorari, he certified to-this court the writ of restitution read in evidence on the trial of the cause. Did the writ, thus certified, become a part of the record?
It is provided by sec. 343 of the code, that “It shall not-be necessary to copy a written instrument or any documentary evidence into a bill of exceptions; but it shall be sufficient to refer to such evidence, if its appropriate place be designated by the words ‘here insert.”’
Aside from this provision, the bill of exceptions would have to contain all the evidence, both oral aud written. It-is only by complying with the statute, that the clerk can be authorized to insert in the bill of exceptions documentary evidence referred to in it. This bill of exceptions did not contain the direction to the clerk required by the statute, *471and he had no authority, therefore, to insert in it the writ of restitution. The clerk’s authority to insert documents in the bill of exceptions depends upon the statute, and unless the court authorize him to copy into the record papers put in evidence upon the trial by the words “here insert,” he has no authority to do so. The certified copy of the writ sent up by the clerk with the return to the certiorari can not therefore be regarded as a part of the bill of exceptions. The counsel for the appellant insist, with much earnestness, that this construction of the statute is too strict and technical. But we must regard the question as settled. Douglass v. The State, 72 Ind. 385; Sidener v. Davis, 69 Ind. 336. In the former case, Judge Woods says: “The affidavit, on which the appellants based their motion for a change of venue, is not in any proper manner made a part of the record. There is in the record a bill of exceptions which shows that ‘the defendants filed their affidavit and motion for a change of venue from the judge in the words and figures, to wit:’ and here follows this statement, which was perhaps inserted by the clerk, though it is not signed by him, viz.: ‘Which affidavit and motion are inserted on pages four and five of this record.’ No ‘here insert’ is shown in the bill at this point.”
In the latter case, Biddle, J., says : “By section 343 , it is made unnecessary to copy a written instrument or any documentary evidence into a bill. of exceptions, ‘ if its appropriate place be designated by the words “here insert;’” but in this case there is no such place designated wherein the evidence should be copied, and no reference in the bill of exceptions to the evidence thus omitted in any other part of the transcript. There is no authority, therefore, in the bill of exceptions, by which the clerk can copy therein the omitted evidence.”
The language of the bill of exceptions, “in the words and figures following, to wit,” can not be understood as a direc*472tion to the clerk. They imply that the judge intends to insert the instrument in the bill of exceptions, and not that the clerk shall do it. The bill of exceptions is the language of the judge who signs it, and the clerk can insert no paper in it unless directed to do so by its language. Kesler v. Myers, 41 Ind. 543; Carver v. Carver, 44 Ind. 265; Aurora Ins. Co. v. Johnson, 46 Ind. 315.
It is also insisted by the appellant that this court will take judicial notice of the contents of the writ of restitution read in evidence in this case. We think this court can not judicially know the contents of the particular writ of restitution put in evidence in the case, because, as the appellant insists, the record shows that it was issued by a justice of the peace, and also shows the subject-matter of the suit and the parties to it. The words “writ of restitution” are not more significant than are the words “warranty deed.” It would hardly be contended, that, because the record in a case before this court showed the subject-matter in controversy and the parties to the suit, it could take judicial notice of the contents of a warranty deed read in evidence on the trial, and shown to have been executed by one of the parties to the other. The contents of the deed and of the writ can only be determined by the instruments themselves.
The petition for a rehearing ought to be overruled.
Per Curiam. — The petition for a rehearing is overruled.