Drake v. State

• Decision Date: 28 May 1896
• Parties: DRAKE v. STATE.
• Court: Indiana Supreme Court

145 Ind. 210

44 N.E. 188

DRAKE

v.STATE.

Supreme Court of Indiana.

May 28, 1896.

On rehearing. Denied.

For prior report, see 41 N. E. 799.

PER CURIAM.

Counsel for appellant in the petition for a rehearing ask “the court to grant a rehearing in order to enable the appellant to have his transcript corrected in this, to wit: That the date of the signing of the appellant's bill of exceptions by the trial judge is erroneously stated therein as being the 16th day of November, 1894, when it ought to be the 15th day of November, 1894, as shown by the affidavits herewith filed.” It is urged that the rehearing be granted so that an order commonly called a “certiorari” may be issued for the amendment of the transcript. It is a rule established by an unbroken line of the decisions of this court, that a rehearing will not be granted in order that a party may correct or perfect the record upon certiorari. Warner v. Campbell, 39 Ind. 409; Railroad Co. v. Van Houten, 48 Ind. 90;Cole v. Allen, 51 Ind. 122;State v. Terre Haute & I. R. Co., 64 Ind. 297;Merrifield v. Weston, 68 Ind. 70; Mansur v. Churchman, 84 Ind. 573; State v. Dixon, 97 Ind. 125;Board of Com'rs Marion Co. v. Center Tp., 105 Ind. 422, 2 N. E. 368, and 7 N. E. 189, and cases cited on page 444, 105 Ind., and page 368, 2 N. E., and page 189, 7 N. E.; Miller v. Railroad Co. (Ind. Sup.) 42 N. E. 806; Elliott, App. Proc. § 208. Judge Elliott, in his work on Appellate Procedure, at section 208, says: “The rule is well settled that amendments will not be permitted after the decision on appeal. The duty of parties is to see that the record is properly made up, and if they fail to move promptly in securing a correction, or amendments are necessary to make a perfect record or fully present the question, their complaint will not be heeded. It is incumbent upon the party desiring the amendment or correction to take the necessary steps to secure it before the record is finally acted upon, and he must see that the officers of whom duties are required perform those duties.” It is no excuse for a failure to perform this duty that the attorney general's brief, raising the question that the bill of exceptions was not in the record, was only filed a few days before the decision, and that he did not furnish appellant a copy thereof. It was the duty of appellant and his counsel to examine the transcript, and ascertain if the same was correctly prepared, and to take timely steps to correct any errors therein. No excuse for failing to perform this duty is shown. Even if the attorney general had not discovered the infirmity in the record, and pointed it out, this court was not required to disregard the same, and determine questions not in the record on account of the defective transcript. Miller v. Railroad Co., supra.

It will...