On Petition foe Eeheaeing.
Wiley, C. J.—In their brief on petition for a rehearing, counsel complain bitterly of the statement in the original opinion that the only assignment of error that presents any question for review is the second, which challenges the conclusions of law. Upon a reexamination of the record we feel fully justified in the statement thus made, in the abstract, but add that all questions properly presented by the record are embraced in the second specification of the assignment of error. The first specification of the assignment of errors is that the court erred in overruling appellant’s motion to strike out special findings thirteen, fifteen, and sixteen. This was a written motion, and it was based upon the ground that the said findings were “inconsistent with the other findings returned”. We insist that this motion, the overruling of which is assigned as error, does not present any question for review, even if the motion and the ruling thereon were brought into the record by a bill of exceptions, and this has *26not been done. As appellants’ learned counsel insist that the motion is thus brought into the record, we deem it important to state the facts as disclosed by the record. While there is a bill of exceptions attached to the transcript, it will be readily seen from what follows that the bill is not in the record.
The record shows that the special findings were made January 23, 1899. On the same day appellants’ motion to strike out findings thirteen, fifteen, and sixteen, was filed and overruled, and they were given sixty days in which to file their bill of exceptions. On the same day the court stated its conclusions of law, and appellants excepted thereto. Immediately following this, at the' same sitting of the court, appellants moved for a new trial, which motion was overruled, and sixty days were given in which to file their bill of exceptions. On the same day appellants filed-their general bill of exceptions, and a record entry thereof was made, which is shown by the transcript. This general bill of exceptions is not, however, copied into the record. The original bill of exceptions, embracing the motion to strike out findings thirteen, fifteen, and sixteen, and the ruling thereon, shows that it was presented to and signed by tho trial judge January 27, 1899, and is attached to the transcript. It appears, therefore, that this special bill of exceptions was approved and signed by the trial judge within the time given, but there is nothing in the record by way of record entry or certificate of the clerk to show that such bill was ever filed, either in open court or in the clerk’s office. This is essential to bring the bill into the record. Upon this proposition there are numerous authorities, but we content ourselves by referring to Denman v. Warfield, 20 Ind. App. 664, and authorities there cited, and Lowry v. Downey, 150 Ind. 364, and authorities there cited. Pretense may be made that the record entry made on January 23rd, showing the filing of the “general” bill of exceptions referred to, was in fact the special bill, embracing the *27motion to strike out. This position, however, is wholly untenable, for the reason that the record entry made January 23rd could not possibly refer to or embrace a bill of exceptions that was not then in existence and was not approved and signed until four days thereafter. True, the latter bill has indorsed and stamped upon its back a stencil file mark of the clerk, but this.is not sufficient to show that it was filed as required by law. So we must hold that the motion to strike out is not in the record. But, even if it were, it would not present any question. It has repeatedly been held that a motion to strike out parts of a special finding is not authorized by any rule of practice. Tewksbury v. Howard, 138 Ind. 103; Van Valkenburgh v. Dean, 15 Ind. App. 693; Sharp v. Malia, 124 Ind. 407; Levy v. Chittenden, 120 Ind. 37.
In Sharp v. Malia, supra, the court said: “We are not advised of any rule of practice which authorizes a motion to strike out parts of a special finding of facts. Should the court fail to find all the facts proved, or find the facts contrary to the evidence, the remedy is by motion for a new trial.”
As we have seen, appellants moved for a new trial, and in their brief on petition for rehearing it is earnestly urged that we should have considered the questions presented by it under the third specification of the assignment of error, whereby the action of the trial court in overruling the motion is challenged. A brief mention of the reasons for a new trial will serve to show that every question it is thus sought to raise is properly presented, and reviewable under the exceptions to the conclusions of law, which are assigned as error.
The reasons for a new trial are: (1) Error in the thirteenth, fifteenth, and sixteenth special findings, and each of them, in that they are inconsistent with the other findings; (2) error in the conclusions of law, and that the conclusions of law are not sustained by the findings and are contrary to *28law; (3) error in sustaining appellee’s motion for judgment on the findings and conclusions of law; (4) error in overruling appellant’s objections and exceptions to the conclusions of law, and in rendering judgment against them; (5) error in rendering judgment in favor of appellee. If any of these present any question that is not fairly debatable under the assignment of error questioning the conclusions of law, then we were in' error in saying that the only question for consideration was thus presented. Appellee moved for judgment on the special findings and conclusions of law, which motion was sustained. The correctness of the conclusions of law can not be thus tested. Royse v. Bourne, 149 Ind. 187. This disposes of the third reason for a new trial.
The second, fourth, and fifth reasons for a new trial do not present any question that is not fully and fairly covered and embraced by the second specification of the assignment of error, which brings in review the conclusions of law. That certain of the special findings are inconsistent with other findings is not a reason for a new trial. The only manner in which a special finding of facts and conclusions of law can be brought in review is by excepting to the conclusions of law. City of Logansport v. Wright, 25 Ind. 512; Peden v. King, 30 Ind. 181; Luirance v. Luriance, 32 Ind. 198; Board, etc., v. Newman, 35 Ind. 10; Cruzan v. Smith, 41 Ind. 288; Rose v. Duncan, 43 Ind. 512.
The errors assigned are: (1) That the court erred in overruling the motion to strike out special findings thirteen, fifteen, and sixteen; (2) that the court erred in its conclusions of law; (3) that the court erred in overruling the motion for a new trial; (4) that the court erred in rendering-judgment against appellants.
Erom this assignment of error, and the authorities to which we have referred, it is clear that’ the only error assigned that presents any question for review is that the court erred in its conclusions of law, and it follows that we *29were right in the original opinion in so stating. It is probably trae that if facts specially found were inconsistent and contradictory, .it might follow that they would not sustain the conclusions of law based thereon; but such condition does not here exist. Counsel urge that findings thirteen, fifteen, and sixteen are inconsistent with the other findings, but we are unable to discern any inconsistency. It is also insisted that we did not decide the case upon the theory made by the complaint. * An examination of the original opinion and the complaint will disclose the fact that the opinion follows the theory of the complaint. The first paragraph of complaint proceeds upon the theory that appellee took an assignment of the judgment with knowledge of appellants’ lien; that she received full payment thereof, including appellants’ lien, and that the payment, was made to her without the knowledge or consent of appellants. The second paragraph proceeds upon the theory that appellee expressly agreed to pay appellants’ lien when she took an assignment of the judgment. . Also that she released the judgment of record, and hence became liable, etc.
The court found every essential fact against appellants, and there can be no question but what on the facts found the conclusions of law were correctly stated. No other conclusion could have been reached.
Petition for a rehearing overruled.