Coney v. Farmers State Bank

• Decision Date: 06 April 1970
• Docket Number: No. 369A52,369A52
• Citation: 256 N.E.2d 692,146 Ind.App. 483
• Parties: Bernice CONEY, Appellant, v. FARMERS STATE BANK, Appellee.
• Court: Indiana Appellate Court

Page 692

256 N.E.2d 692

146 Ind.App. 483

Bernice CONEY, Appellant, v. FARMERS STATE BANK, Appellee.

No. 369A52.

Appellate Court of Indiana, In Bank.

April 6, 1970.

Rehearing Denied May 21, 1970.

Robert C. Probst, Probst & Probst, Kendallville, for appellant.

F. LeRoy Wiltrout, Elkhart, LeRoy K. Schultess, LaGrange, for appellee.

PER CURIAM.

This matter is before us on the Order of the Supreme Court of Indiana remanding this cause to this Court for an opinion setting forth the reasons for granting the appellee's Motion to Affirm.

This is an appeal from the LaGrange Circuit Court wherein the trial court entered judgment for the appellee herein and against the appellant, Bernice Coney. The assigned error on appeal is that the trial court erred in overruling the appellant's motion for new trial. The appellant has argued in her brief only the following causes of her motion for new trial:

'3. Error in the awarding of attorneys fees in behalf of the attorney representing the plaintiff in that the attorney was an officer of the bank and that no attorneys fees have ever been paid by the bank to this attorney, all as shown by the record and the evidence.

'4. That the decision of the Court is not sustained by sufficient evidence.

'5. That the decision of the Court is contrary to law.'

The appellee's Motion to Affirm alleges that each of these specifications of error urged by the appellant requires a consideration of the evidence, and that there is no bill of exceptions containing the evidence in the record in this cause. The appellee's specific argument is as follows:

'5. There is no bill of exceptions containing the evidence in the record in this case. What appellant apparently considers as such is not a bill of exceptions and is not a part of the record for the following reasons:

a. There appears, beginning on page 37 of the transcript and extending through page 85, what appears to be questions asked of various witnesses, answers, objections, rulings and exhibits. This is followed on page 86 by a certificate of a court reporter in a form which might be used by a court reporter in preparing a transcript of evidence. However, the purported bill of exceptions contains no certificate of the judge as required by Rule 2--3 and the decisions of this and the Supreme Court.

b. The purported bill of exceptions contains no caption or formal commencement or introductory statement of any kind.'

We have carefully examined the transcript and find that the bill of exceptions is not complete. There is no formal commencement to the bill of exceptions. There is no caption identifying the bill of exceptions. There is nothing to identify the purported bill of exceptions as being a part of this particular cause. It begins with what appears to be a colloquy between the Court and counsel. It does not contain any ending phrase indicating this was all of the evidence given in the case.

Immediately following what purports to be the transcript of the evidence is the certificate of Gene Plasterer, the court reporter of the LaGrange Circuit Court, which certificate is in the proper form and certifies that the foregoing manuscript is a full, true, correct and complete copy of the evidence, objections thereto, the Court's rulings and documentary evidence, and that said manuscript is a full, true and correct record of the evidence and contains all of the evidence given. However, it has long been held that the certificate of the reporter adds nothing to the bill of exceptions, need not be incorporated therein, and when it is included, it is mere surplusage. Rowan v. State (1916), 184 Ind. 399, 111 N.E. 431; Wagner v. Wagner (1915), 183 Ind. 528, 109 N.E. 47; Parker v. State (1915), 183 Ind. 130, 108 N.E. 517; Walsh v. Gilmore (1960), 130 Ind.App. 307, 164 N.E.2d 358.

We cannot determine, from examining the forty-nine pages immediately preceding the reporter's certificate, what they purport to be. There are questions and answers. But there is nothing to identify these questions and answers. Conceivably they could be part of a conditional examination; or they could be from a preliminary hearing; or they could be from an entirely different cause of action than the one before us. Moreover, as there is no showing of a beginning or an end, we cannot determine whether it is partial or complete. This is totally insufficient as a bill of exceptions.

We are aware of the recent cases holding that we must examine the bill of exceptions as a whole to ascertain whether or not it contains words which indicate clearly and unmistakenly that the bill does contain all the evidence. Kist v. Coughlin (1944), 222 Ind. 639, 649, 57 N.E.2d 199, 203; Morrow, Inc. v. Munson, et al (1958), 129 Ind.App. 113, 117, 150 N.E.2d 256; Hayes Freight Lines v. Oestricher (1946), 117 Ind.App. 143, 150, 66 N.E.2d 612, 68 N.E.2d 792 (transfer den.). In this case we cannot determine from what purports to be the bill of exceptions that it contains all the evidence, or even that it contains the evidence given in this particular cause.

The appellee next argues there is no certificate of the judge as required by Rule 2--3 of the Supreme Court and the decisions of the Supreme and Appellate Courts. With this we cannot agree. Immediately preceding the judge's certificate, the following appears:

'Bill of exceptions tendered and approved and ordered filed, as per WRITTEN ENTRY FURNISHED:'

On the next page appears the judge's certificate in proper form. Appellant's counsel, by marginal note, has denominated this as 'Judge's Written Entry'.

Notwithstanding the incorrect marginal notation identifying the Judge's Certificate as the 'Judge's Written Entry', we will look to the substance of the form and not to the title. Oster v. Broe (1903), 161 Ind. 113, 133, 64 N.E. 918; Keeshin Motor Express Co. v. Glassman (1942), 219 Ind. 538, 543, 38 N.E.2d 847; John's Cash Furn. Stores, Inc., et al v. Mitchell (1955), 126 Ind.App. 231, 235, 125 N.E.2d 827, 127 N.E.2d 128 (Reh. Den.)

Three pages later appear two printed forms, each of which is entitled Judge's Certificate, and appellant's counsel in his marginal notes has identified these as 'Judge's Certificate'. These latter two certificates are not the form of judge's certificate required to settle a bill of exceptions. These are forms of congressional certification in which the judge certifies that the clerk and the reporter are the clerk and the reporter, and the clerk certifies that the judge is the judge. These certifications not being required, are surplusage.

In our examination of the transcript we discover another defect, however; namely, that there is no order book entry showing that the purported bill of exceptions was filed with the clerk, and the clerk's certificate makes no reference to the bill of exceptions, either that the bill of exceptions is contained in the transcript or that the bill of exceptions was filed with the clerk.

Rule 2--3 of the Rules of the Supreme Court of Indiana provides in part as follows:

'Every bill of exceptions tendered prior to the filing of the transcript in the appellate tribunal shall, if correct, be signed by the judge and filed with the clerk, which filing may be evidenced by an order book entry or the clerk's certificate.' (our emphasis)

Where it is not properly shown that the bill of exceptions was filed, it is not part of the record on appeal. Findling v. Findling (1963), 134 Ind.App. 661, 186 N.E.2d 892; McCracken v. Hunter (1962), 134 Ind.App. 157, 186 N.E.2d 884. Courts speak by their records, and an appellate tribunal can only be informed from the record made up of the entries by the clerk and the bill of exceptions certified by the trial judge and duly filed with the clerk. Findling v. Findling, supra; Philips v. State (1930), 202 Ind. 181, 172 N.E. 904; Riley v. State (1897), 149 Ind. 48, 48 N.E. 345.

As the evidence is not properly in the record, no question is presented by the motion for new trial filed herein which requires a consideration of the evidence. For this reason alone, the motion to affirm must be sustained.

There is yet another reason why the motion to affirm should be sustained. The motion to affirm next alleges that it is apparent from appellant's brief that there has not been a good faith effort to comply with Rule 2--17 of the Rules of the Supreme Court, nor is there any substantial compliance therewith.

After having examined the appellant's brief, we agree with the appellee.

The summary of the record set out in the appellant's brief does not set forth any of the pleadings, or a summary thereof. Only in that part of the brief stating what the issues were does the appellant make any reference to the pleadings tending to disclose the nature of the complaint and the answer. This is not sufficient even as a summary statement of the record. Appellant states the plaintiff filed a reply but does not make any statement as to its contents.

The appellee further points out, and we note that the summary statement of the evidence, which is contained in 49 pages in the transcript, has been condensed into 3 pages in the appellant's brief. There are brief summaries of the testimony of three persons, but we cannot determine whether the testimony set out was given on direct or cross examination. We cannot determine whether these three witnesses were the only witnesses to testify. We cannot determine where in the transcript the evidence purported to be summarized can be found. We cannot determine from the briefs what the exhibits were, including the check which is the subject of the controversy.

The appellant's brief should be prepared so that each judge, considering the brief alone and independent of the transcript, can intelligently consider each question presented. Robinson v. State (1916), 185 Ind. 119, 113 N.E. 306; Pennsylvania R. Co. v. Mink (1966), 138 Ind.App. 311, 212 N.E.2d 784; Vanderkooi v. Echelbarger (1968), 250 Ind. 175, 235 N.E.2d 165. The appellant's brief...