Close v. Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company

• Decision Date: 24 May 1898
• Docket Number: 18,338
• Citation: Close v. Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company, 50 N.E. 560, 150 Ind. 560 (Ind. 1898)
• Parties: Close, by Next Friend, v. Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company
• Court: Indiana Supreme Court

50 N.E. 560

150 Ind. 560

Close, by Next Friend, v. Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company

No. 18,338

Supreme Court of Indiana

May 24, 1898

From the Scott Circuit Court.

Affirmed.

Oscar H. Montgomery and Joseph H. Shea, for appellant.

Simeon Stansifer, for appellee.

OPINION

McCabe, J.

The appellant sued the appellee in a complaint of three paragraphs, to recover for a personal injury to a minor, at the crossing of appellee's railway by a public highway caused, as is alleged, by the negligence of appellee.

The appellee filed certain interrogatories to the appellant, which were answered by him. Upon these interrogatories and their answers appellee moved to reject the complaint, on the ground that said complaint was false, and, therefore, a sham pleading, according to section 385, Burns' R. S. 1894 (382, R. S. 1881). The circuit court sustained said motion, rejected all three paragraphs of the complaint, and afterwards dismissed the cause for want of a complaint. Upon this action of the circuit court, alone, error is assigned here by appellant.

After stating that said motion was sustained, and plaintiff's exception thereto, the record reads thus: "And it is now ordered by the court that defendant's motion to dismiss this action, the interrogatories propounded by defendant to plaintiff, and plaintiff's answers thereto, the court's ruling on said motion and defendant's exceptions to such ruling and all entries with respect to said motion, interrogatories, answers, ruling, and exceptions be made a part of the record of this cause without a bill of exceptions, which motion, interrogatories, answers, ruling, and exceptions are in the words following, to wit: here follow interrogatories as set out heretofore in this transcript at pages 15 to 25 inclusive; and answers thereto as set out herein at pages 26 to 33 inclusive; and motion by defendant to dismiss as appears herein at page 36; the court's ruling sustaining said motion as contained herein at page 37; the exceptions of the plaintiff to the ruling of the court as noted herein at page 38."

The matters sought to be made a part of the record by the order above quoted are manifestly no part of the record, unless made so either by bill of exceptions or order of court. The bill of exceptions is of statutory origin as the order of the court by which matters not a part of the record are incorporated into it or added thereto. The matters mentioned were not made part of the record by bill of exceptions. So that if they are a part of the record, it must be so because they have been made so by the order mentioned. The above order obviates the defect in the order for which it was held in Russ v. Russ, 142 Ind., at p. 474, that the extrinsic matter there involved had not been brought into the record. The order there was as follows: "And the court having heard said motion, overrules the same, to which ruling of the court, the defendant at the time excepts, and the same is now ordered to be made a part of the record." It was held there that such order was too indefinite as to the particular matters intended to be incorporated into the record. But there was another defect in the order there, as there is here, and which we did not there mention, that rendered the order ineffective to make the matters referred to therein a part of the record namely, the matters sought to be incorporated into the record by such order are not set out in the order. The section of the code on the subject provides that: "All proper entries made by the clerk, and papers pertaining to a cause, and filed therein (except a summons for the defendant, where all the persons named in it have appeared to the action, and summons for witnesses, depositions, and other papers which are used as mere evidence) are to be deemed parts of the record; but a transcript of motions, affidavits, and other papers, when they relate to collateral matters, and depositions and papers filed as mere evidence shall not be certified, unless made a part of the record by exception or order of court and directed to be certified by appellant. * * * Every paper and pleading above excepted may be made a part of the record by exceptions or order of the court on motion." To make matters outside of the record a part thereof by order instead of bill of exceptions, in the very nature of the transaction, the added matter must be spread upon, or written into the record. That can only be done by setting such matter forth in the order. Otherwise, this court could never tell what extrinsic matter had been added to or incorporated in the record. Before the extrinsic matter can become a part of the record by such an order it must be designated in the order at least, as all must admit. And if the extrinsic matter is simply designated or named in the order, without setting it forth therein, then something has been named or designated...