Blair v. Curry

• Decision Date: 18 March 1898
• Docket Number: 18,208
• Citation: 49 N.E. 908,150 Ind. 105
• Parties: Blair v. Curry et al
• Court: Indiana Supreme Court

49 N.E. 908

150 Ind. 105

Blair v. Curry et al

No. 18,208

Supreme Court of Indiana

March 18, 1898

Original Opinion of April 6, 1897, Reported at: 150 Ind. 99.

OPINION

McCabe, J.

Counsel complain bitterly because we held in the original opinion that the refusal of the request for a jury trial did not occur at the term of court at which the trial occurred, and that as no jury was demanded at the term at which the trial took place, the right to a jury trial was waived by the appellant. On this petition counsel quote the order-book entry, which we may concede shows that the trial of the issues took place at the May term, 1895, and immediately following the refusal of appellant's demand for a jury trial, and shows that such trial, so far as the evidence and argument is concerned, according to said order book, was concluded at the May term, 1895, running into June, 1895. But the bill of exceptions taken by appellant and doubtless drawn up by counsel now so harshly assailing this court, states the order of the events differently. This circumstance the irate counsel finds it quite to his purpose to ignore, and it was upon that express ground that the original opinion based the holding that there was no demand for a jury at the term at which the trial occurred.

Counsel, in preparing the bill of exceptions on behalf of the appellant, seems to have entertained a fear that this court could not understand the order of events of the trial from the order book entry, and hence was very specific, and placed that matter beyond all doubt or cavil, if a bill of exceptions imports verity. It reads thus: "Be it remembered that on the day of 29th May, 1895, it being the ninth judicial day of the spring term, of the Fayette Circuit Court, the Honorable David W. McKee, special judge, presiding, the following proceedings were had and held: James Blair, by his attorney, Thomas D. Evans, filed a written motion to this court asking that the cause be tried by a jury, which motion, after argument, was overruled, to which ruling of the court the said James Blair at the time excepted. Be it further remembered that this cause coming on to be heard was heard, before the said Judge on the 26th day of October, 1895, upon the issues formed, when and where the plaintiff and defendants, to maintain the issues introduced the evidence which is set out in the longhand manuscript reports of the reporter." We cited a long list of the decisions of this court in our former opinion, holding that where the bill of exceptions contradicts the order book entry as to the order of events, that the bill of exceptions importing absolute verity must control. The law compelled us to rule as we did on this point, and not because we had any choice as to which party should prevail in this court. If the bill of exceptions is so framed as to make the record speak untruly, it is not the fault of this court, but undoubtedly is the fault of appellant's counsel.

It is also urged with great fervor that we erred in holding that a large batch of documentary evidence, attempting to be injected into the bill of exceptions, and into the transcript...