On Petition for Rehearing.
Cox, C. J.*6211. *61Appellant David G-. Lehman in his petition for a rehearing states that the part of the complaint set out in the opinion, in regard to his agreeing to build a cement sidewalk along the north side of the real estate involved, and the city making the fill therefor, and as to the conveyance of a part of the real estate by said appellant to his wife to defraud appellee, was stricken out on motion in the court below, and formed no part of the complaint at the time of the trial, citing the page of the transcript where a motion to strike out is copied and the same sustained. Section 2 of the act of 1903 (Acts 1903 p. 338, §662 Burns 1908) provides *62that all motions to strike out shall be in writing, and shall set forth the words sought to be stricken out. Section 3 of the act (§663 Burns 1908) provides that such a motion to strike out and the ruling of the court thereon shall be a part of the record without a bill of exceptions. This court held in Crystal Ice Co. v. Morris (1903), 160 Ind. 651, 67 N. E. 502, that the requirement of §2, supra, that the words sought to be stricken out must be set out in the motion, is mandatory, and the motion cannot be made in any other way.
12. It is evident if the motion is so made that the motion and the rulings of the court thereon are in the record without a bill of exceptions, but if not so made, neither the motion nor the ruling of the court is in the record
without such bill of exceptions. Motions to strike out, not complying with §2, supra, and the ruling of the court thereon, are governed by the rule declared in Crystal Ice Co. v. Morris, supra, and cases there cited. And see Vandalia R. Co. v. Baker (1912), 50 Ind. App. 184, 97 N. E. 16, 18.
13. The motion to strike out a part of the complaint made by said appellant in this cause, as shown by the transcript, while in writing did not set out therein the "words sought to be stricken out”. The motion did not, therefore, comply with the requirements of §2 of the act of 1903, supra, and the same and the ruling of the court thereon not being in a bill of exceptions are not in the record and cannot be considered. It follows that the record does not show, as claimed by appellants, that the part of the complaint quoted in the opinion was stricken out on motion. Therefore, under the rule importing absolute verity to the record, this court must consider the complaint as found in the record. Lindley v. Kemp (1906), 38 Ind. App. 355, 357, 76 N. E. 798, and eases cited. The other questions presented by the petition for a rehearing have been fully considered and determined in the original opinion, and after a careful *63review of the same we see no reason to change the views there expressed. The record convinces that a just judgment was rendered by the trial court.
The petition for a rehearing is therefore overruled.
Note.—Reported in 98 N. E. 1, 98 N. E. 710. See, also, under (1) 28 Cyc. 1225; (2) 28 Cyc. 1232; (3) 3 Cyc. 443; (4) 28 Cyc. 1236; (5) 30 Cyc. 1254; (7) 23 Cyc. 1280; 2 Am. St. 876; (8) 31 Cyc. 358; (9) 3 Cyc. 176; (10) 38 Cyc. 1957; (11) 31 Cyc. 663; (12) 2 Cyc. 1058; (13) 3 Cyc. 152.