Diane Co. v. Beebe

• Decision Date: 11 October 1960
• Docket Number: No. 1,No. 19072,19072,1
• Citation: 131 Ind.App. 161,169 N.E.2d 542
• Parties: DIANE COMPANY, INC., d/b/a Clinton Garment Company, Alex Lieberman, Appellants, v. Harrison BEEBE, Appellee
• Court: Indiana Appellate Court

Page 542

169 N.E.2d 542

131 Ind.App. 161

DIANE COMPANY, INC., d/b/a Clinton Garment Company, Alex

Lieberman, Appellants, v. Harrison BEEBE, Appellee.

No. 19072.

Appellate Court of Indiana, Division No. 1.

Oct. 11, 1960.

James P. Savage, Clinton, for appellants.

Benjamin F. Stephenson, Rockville, R. D. Owens, Clinton, for appellee.

MYERS, Judge.

This action was commenced in the Vermillion Circuit Court by appellee to recover from the appellants on an account stated and on an open account.

The issues were made by the filing of a complaint in two paragraphs. The first paragraph alleged that the appellants were indebted to the appellee in the sum of $1,585.50 on an account stated. The second paragraph alleged that the appellants were indebted to the appellee for labor performed at their special instance and request in the sum of $325. The appellants filed their answer generally denying the allegations.

The cause was tried before the court without the intervention of a jury and a judgment recovered by the appellee in the sum of $1,485.50 on the first paragraph of the complaint and in the sum of $325 on the second paragraph.

A motion for a new trial was filed wherein the appellants stated: 'That the finding or decision of the court is not sustained by sufficient evidence and is contrary to law.' The court overruled it, and this appeal followed.

The appellants have assigned as error the overruling of the motion for a new trial, and, as a second specification, that the Vermillion Circuit Court did not have jurisdiction of the subject-matter of the action or of the parties.

Appellee calls attention in his brief to the fact that in the transcript as filed the bill of exceptions containing the evidence follows, and does not precede, the Clerk's Certificate. Thus, he claims that it cannot be considered as a part of the record, with the result that matters concerning the evidence cannot be presented to this court.

Upon looking at the record, we find that the Clerk's Certificate, omitting the caption, reads as follows:

'I, Mary Frances Stokes, Clerk of the Vermillion Circuit Court within and for said County and State, do hereby certify that the above and foregoing transcript contains full, true and correct copies, or the originals, of all papers and entries in said cause required by the above and foregoing praecipe.

'I further certify that the above and foregoing bill of exceptions was filed with me on the 12th day of July, 1957.

'Witness my hand and the Seal of said Court, at Newport, this 12th day of July, 1957.

'(Seal) 'Mary Frances Stokes

'Mary Frances Stokes, Clerk

'Vermillion Circuit Court'

(Our emphasis.)

It is located immediately following the page setting forth the appellants' praecipe for the record and immediately before the title page of the Bill of Exceptions Containing the Evidence.

Appellants' praecipe reads as follows:

'To the Clerk of the Vermillion Circuit Court:

'The defendants hereby request you to make up a full, complete, true and correct transcript of all papers, orders and proceedings filed, made and had in this cause, excepting only the defendant's original bill of exceptions containing the evidence and which said bill of exceptions you are requested to embody in said transcript without copying, and when so prepared, you will certify to said transcript, for use on appeal of this cause to the Appellate Court of Indiana.

'James P. Savage

'Attorneys for Defendants'

Thus, it can be seen that the bill of exceptions was not 'embodied' in the transcript, and then, 'when so prepared,' certified by the Clerk. The bill of exceptions does not precede the Clerk's Certificate as so stated therein. See Butt v. Lake Shore, etc., R. Co., 1902, 159 Ind. 490, 65 N.E. 529, and Hunter v. Stump, 1948, 118 Ind.App. 84, 76 N.E.2d 696.

Section 2-3112, Burns' 1946 Repl., provides that the Clerk shall certify to all papers or copies thereof required by the praecipe. This certificate should be the last paper in the transcript, with the praecipe entered above it. Johnson, Adm. v. Johnson, 1901, 156 Ind. 592, 60 N.E. 451; Rowan v. State, 1916, 184 Ind. 399, 111 N.E. 431; Butt v. Lake Shore, etc., R. Co., supra. Where the bill of exceptions appears after the Clerk's Certificate it has been held not to be a part of the record because it is not certified thereto. Robinson v. Smith, 1917, 64 Ind.App. 119, 115 N.E. 336; German Baptist, etc., Ass'n v. Conner, 1917, 64 Ind.App. 293, 115 N.E. 804; Peck & Mack Co. v. Schafer Hardware Co., 1921, 76 Ind.App. 426, 132 N.E. 305; Pahmeier v. Rogers, 1936, 102 Ind.App. 480, 1 N.E.2d 287; Clamme v. Hutcherson, 1940, 108 Ind.App. 384, 29 N.E.2d 320; Radcliff v. Meishberger, 1942, 112 Ind.App. 135, 43 N.E.2d 874; Hunter v. Stump, supra; Edwards v. Evansville City Coach Lines, Inc., 1956, 126 Ind.App. 342, 133 N.E.2d 88; Murphy v. Hendrick, Ind.App.1959, 157 N.E.2d 306.

This case does not fall within the exception as stated in the case of Kreig v. State, 1934, 206 Ind. 464, 190 N.E. 181, 184, wherein the Supreme Court held a bill of exception sufficiently certified even though following the Clerk's Certificate. However, there the Clerk's Certificate stated that the bill of exceptions, instead of being copied into the record, was 'embodied therein as originally filed.'

Herein the certificate is general and did not specifically name the bill of exceptions as being a part of the record. It merely states that the 'above and foregoing' bill of exceptions was filed with the Clerk. Accordingly, the bill of exceptions is not properly before this court, and we are thus prohibited from considering any matters pertaining to the evidence introduced in this cause. Hunter v. Stump, supra.

Appellants also contend that the court lacked jurisdiction over the parties and the subject-matter. This portion of their argument, as presented in their brief, is based only upon a claim that the statute of frauds prevents recovery by the appellee. We cannot see how such argument has the slightest bearing on or connection with the question of jurisdiction.

The Vermillion Circuit Court is a trial court of general jurisdiction and has the power and the authority to hear and determine cases of this sort. The record reveals that the lawsuit was properly commenced, summons duly served on the appellants, and that the parties appeared in person or by counsel at the time of the trial. Therefore, we find no merit to the second assignment of error.

Appellants finally argue that the judgment is contrary to law and void, as it did not designate which of the appellants the judgment was rendered against. The entry of judgment reads as follows:

'The Court having examined Briefs and Memorandum of parties and now being duly advised finds for the plaintiff on Paragraph One of Plaintiff's complaint. That there is due and owing plaintiff by defendant herein the sum of $1485.50. That said sum is due and unpaid. That plaintiff should recover judgment in said amount.

'And the Court being advised as to Paragraph Two of plaintiff's complaint now finds that defendant is indebted to plaintiff in the sum of $325.00. That said sum is due and unpaid. That plaintiff should recover judgment in said amount.

'Costs to defendant.

'Judgment and decree on finding.' (Our emphasis.)

It is true that a judgment should show the parties against whom it is rendered. A judgment which does not do this may be void for uncertainty. However, it has been said by the Supreme Court of Missouri as follows:

'It is a well settled rule of law, approved by text writers and this court, that if, there is any uncertainty in the judgment as to the party for or against whom it is rendered, it is proper to look to...