Conner v. Jones

• Decision Date: 12 April 1945
• Docket Number: No. 17271.,17271.
• Citation: 115 Ind.App. 660,60 N.E.2d 534
• Parties: CONNER v. JONES.
• Court: Indiana Appellate Court

115 Ind.App. 660

60 N.E.2d 534

CONNER

v.JONES.

No. 17271.

Appellate Court of Indiana, in Banc.

April 12, 1945.

Appeal from Marion Superior Court No. 4; Walter Pritchard, Judge.

On petition for rehearing.

Petition denied.

For former opinion, see 59 N.E.2d 577.Albert Stump and Leo X. Smith, both of Indianapolis, for appellant.

Armstrong & Gause, of Indianapolis, for appellee.

CRUMPACKER, Judge.

In his petition for a rehearing of this appeal the appellant charges us with error in considering the case of State ex rel. Ernest L. Conner v. Pritchard, 1944, Ind.App., 54 N.E.2d 283, as decisive of the question presented by his third assignment of error, to-wit: The trial court erred in refusing to sign appellant's bill of exceptions No. 3 and order it filed and made a part of the record. Our holding in that respect was to the effect that having decided in the Pritchard case ‘that the matters set out in bill of exceptions No. 3 could not properly be made a part of the record, we must of necessity hold that the trial court committed no error in refusing to sign same.’ Notwithstanding appellant's insistence we are unable to see how a trial court can be charged with error in refusing to make certain transactions a part of the record in a cause by way of a bill of exceptions, which transactions constitute no part of the trial of such cause and have no legitimate place therein.

The appellant now seeks to restrict the Pritchard decision to holding that bill of exceptions No. 3 ‘could not be made a part of the record by a writ of mandamus.’ In other words, we understand appellant's present position to be that the Pritchard decision, limited to the issues involved, goes no further than to say that mandamus is not the proper remedy to bring a bill of exceptions into the record and that, therefore, the question as to whether the trial court erred in refusing to sign the same and order it made a part of such record is still open. We do not believe the Pritchard decision can be twisted into any such erroneous holding. Certainly mandamus is a proper remedy if a trial court refuses to do its duty in settling and signing a proper bill of exceptions. The Pritchard case was decided on its merits and the writ was denied because the trial court was right in refusing to bring matters into the record that had no proper place there.

We are next charged with error in holding that, with bill of exceptions No. 3 excluded, there is nothing in the record indicating that the trial court failed to weigh the evidence in passing upon the appellant's motion for a new trial. This contention is predicated upon the theory that, while bill of exceptions No. 3 is not in the record as a bill of exceptions, it is there as a ‘record document’ because the court made an orderbook entry of its refusal to sign the same. Counsel's argument in support of this contention reaches such heights of ingenuity that we quote the same verbatim: ‘But there is a record here without any bill of exceptions. The court below entered an order on its orderbook setting out its refusal to sign the bill of exceptions. It also recited the fact that the bill of exceptions had been tendered as a bill of exceptions. The entry would be meaningless in the record without something to which it could apply. It states that the court ‘refuses to sign such bill of exceptions...