Allen v. Gavin

• Decision Date: 23 November 1891
• Docket Number: 15,393
• Citation: 29 N.E. 363,130 Ind. 190
• Parties: Allen v. Gavin, Administrator
• Court: Indiana Supreme Court

29 N.E. 363

130 Ind. 190

Allen v. Gavin, Administrator

No. 15,393

Supreme Court of Indiana

November 23, 1891

Petition for a Rehearing Overruled Jan. 26, 1892.

From the Wells Circuit Court.

Appeal dismissed.

E. R Wilson and J. J. Todd, for appellant.

L. Mock and A. Simmons, for appellee.

OPINION

Elliott, C. J.

The appellee's counsel stoutly contend that the transcript "presents nothing for the decision of this court." In support of their position they assert, as one of the premises of their argument, that where the appellant's counsel direct what parts of the record below shall be copied into the transcript the clerk must obey the direction, and that only such entries and papers as are embraced in the precipe are properly parts of the record on appeal. This is undoubtedly true, but a liberal construction will be given the precipe, and incidental entries (not however, independent entries, or distinct papers) will be deemed to be impliedly embraced in the specific directions. Reid v. Houston, 49 Ind. 181. To the statement of counsel may be added the further statement that a party who appeals must present a proper transcript, and where he directs what shall be incorporated in it the fault is his if he fails to secure and file such a transcript as fully and clearly presents the questions he asks the court to consider and decide. Morningstar v. Musser, 129 Ind. 470, 28 N.E. 1119, and cases cited. As the statute confers upon the party who appeals the right to direct what papers and entries shall be embodied in the transcript, it necessarily follows that if his direction omits papers or entries essential to a full understanding and proper decision of the case, the appeal will be unavailing. In further support of their position counsel say that "error to be available must clearly appear in the record, without the aid of any extrinsic matter." They cite Hudson v. Densmore, 68 Ind. 391; McCormack v. Earhart, 72 Ind. 24; Martin v. Martin, 74 Ind. 207. This is an accurate statement of the law, as far it goes, but it does not go quite far enough, inasmuch as, to make error available on appeal, it must appear from the record that the error was prejudicial to the appellant, or was probably prejudicial. This doctrine has been asserted in many cases. Morningstar v. Musser, supra, and authorities cited. If, therefore, the appellee's counsel are right in asserting that the record does not make the alleged error manifest, the appeal must fail. Having ascertained and decided, as we are required to do, that the appellee's counsel have correctly stated the law, all that remains to do is to ascertain whether they have made a correct application of the law.

The precipe is part of the record on appeal, inasmuch as the statute requires the clerk "to append" the written direction to the transcript. Section 649, R. S. 1881. We must, therefore, examine the precipe to determine whether the necessary papers and entries are in the record. But, while we can ascertain what papers and entries are in the record from an inspection of the transcript and the precipe, we can not determine whether the record is sufficient to present the questions argued without stating how the questions arose, and giving the general outlines of the controversy, so that it is necessary to make a synopsis of the case. This we do by saying that in November, 1885, John H. Hoover sold to James M. West eighty acres of land, and, to secure the unpaid purchase-money Hoover executed a promissory note to West, reciting the consideration for which it was given, and specifically describing the land purchased of Hoover; West died intestate, Gavin became the administrator of his estate, and Allen, the appellant, who had become the owner of the note, filed it as a claim against the estate of the decedent; other claims, amounting to eight hundred dollars, were also filed; the personal estate of the decedent amounted to $ 786.66, out of which the widow was...