Central Indiana Ry. Co. v. Mikesell
| Decision Date | 01 December 1965 |
| Docket Number | No. 20233,20233 |
| Citation | 139 Ind.App. 478,211 N.E.2d 794 |
| Parties | CENTRAL INDIANA RAILWAY COMPANY, Appellant, v. Dessie MIKESELL, Appellee. |
| Court | Indiana Appellate Court |
Stewart & Austin, Anderson, for appellant.
Webb, Webb & Smith, Noblesville, for appellee.
Appellee filed a motion to dismiss or affirm this appeal because of the failure of appellant to have the clerk's seal on the certificate to the transcript.
In the meantime, appellant filed a timely petition for leave to attach verification to the transcript which was granted and the seal has been affixed. Appellee also requested and obtained an enlargement of the time within which to file a brief on the merits and that brief has been filed.
We are aware of some early decisions refusing to consider an unsealed transcript. A more recent tendency has [139 INDAPP 480] been, where possible, to decide appellate matters on their merits.
Miller, etc. v. Ortman, etc., et al. (1956), 235 Ind. 641, 650 (note), 136 N.E.2d 17; Franklin et al. v. Hunt et al. (1961), 132 Ind.App. 575, 576, 178 N.E.2d 464.
Even an objection that the clerk's certificate to the bill of exceptions is not in the record does not go to the merits of the appeal and is waived by a petition for extension of time.
Langford v. DeArmond (1965), Ind.App., 209 N.E.2d 737, Vol. 6, #4 Ind.Dec. 207.
Where the courts have appeared technical in inadvertent matters there usually has been no effort to correct them. Here we have witnessed prompt action and no delay to the proceedings.
The motion also states that pretrial pleadings in this case were filed and determined in the Hamilton Circuit Court and that subsequently the venue thereof was changed to the Marion Circuit Court; that the transcript does not show authentication of any such pretrial pleadings or record of the Hamilton Circuit Court. It is not shown nor alleged that the same are necessary or material to disposition of this appeal on the merits and we may not and do not so assume.
The petition to dismiss is denied and the motion to affirm is held in abeyance for opinion on the merits.
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Leuck v. Goetz, 471A79
...established by prior holdings of this court. Bland v. Phillips (1966) 138 Ind.App. 214, 213 N.E.2d 339; Central Indiana R.R. Co. v. Mikesell (1965) 139 Ind.App. 478, 211 N.E.2d 794; Langford v. DeArmond (1965) 137 Ind.App. 448, 209 N.E.2d 737. Although the aforementioned decisions were gove......
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...of the courts to reach a resolution of cases based on their merits and not on procedural technicalities. Central Ind. Railway Co. v. Mikesell (1965), 139 Ind.App. 478, 211 N.E.2d 794; Costanzi v. Ryan (1977), Ind.App., 368 N.E.2d Following the overruling of her Motion to Dismiss, Boatman ti......
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