Boyd v. Ralph Rogers & Co., Inc.

• Decision Date: 10 December 1975
• Docket Number: No. 1--475A73,1--475A73
• Parties: Paul T. BOYD and Elnora Boyd, his wife, Plaintiffs-Appellants, v. RALPH ROGERS AND COMPANY, INC., an Indiana Corporation, an Indiana Corporation, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 323

338 N.E.2d 323

167 Ind.App. 199

Paul T. BOYD and Elnora Boyd, his wife, Plaintiffs-Appellants, v. RALPH ROGERS AND COMPANY, INC., an Indiana Corporation, an Indiana Corporation, Defendant-Appellee.

No. 1--475A73.

Court of Appeals of Indiana, First District.

Dec. 10, 1975.

William Sanders, Sanders, Austin & Gibson, Princeton, W. Va., Gary J. Clendening, Bunger, Harrell & Robertson, Bloomington, for appellants.

David O. Tittle, Harry Gonso, Bingham, Summers Welsh & Spilman, Indianapolis, James T. Roberts, Nashville, for appellee.

ON THE APPELLEES' MOTION TO DISMISS OR AFFIRM

PER CURIAM.

This cause is pending before the Court on the appellees' motion to dismiss or affirm. While that motion raises several questions regarding the defects of the appellant's transcript, the question of most substance asserts that the issues on the merits of the cause require a consideration of the evidence, however, the transcript was never filed with the clerk of the trial court as required by the Indiana Rules of Appellate Procedure 7.2(A)(4). As a result, it is argued, the transcript is not before the court.

AP 7.2(A)(4) reads:

'The transcript of the proceedings at the trial, including all papers, objections and other matters referred to above shall be presented to the judge who presided at the trial, who shall examine the same and if not true, correct the same without delay, and as finally settled by the court, shall sign the same, certifying to the same as being true and correct in said proceedings, and order the same filed and made a part of the record in the clerk's officer.' (Emphasis added.)

More specifically, the appellee's motion alleges that the purported transcript was not filed with the clerk and made a part of the record, or if it had been in fact filed, the filing has not been evidenced by the clerk's certificate, a docket sheet entry, an order book entry, or a file mark. An examination of the transcript confirms this allegation since there is no docket sheet or order book entry nor a file mark of the clerk's office. (The transcript does contain the clerk's file mark on certain pages. However the respective dates on the file marks are not compatible with a showing of a filing of the transcript as contemplated by AP 7.2(A)(4).)

Cases interpreting AP 7.2(A)(4), and its predecessor Supreme Court Rule 2--3, have uniforml held that the transcript must manifest compliance with the requirement that it has been filed with the clerk of the trial court before it can be a part of the record on appeal. Coney v. Farmers State Bank (1970), 146 Ind.App. 483, 256 N.E.2d 692; Perry v. Baron (1972), Ind.App., 281 N.E.2d 544; Jackson v. Jackson (1974), Ind.App., 314 N.E.2d 70. The rationale behind such a decision is stated in Taylor v. Butt et al. (1972), Ind.App., 289 N.E.2d 159:

'Courts speak only by their records, and an appellate tribunal can only be informed from the record made up of entries by the clerk and the bill of exceptions certified by the trial judge and duly filed with the clerk. Coney v. Farmers State Bank (1970), 146...