Driver v. Driver

• Decision Date: 29 June 1899
• Docket Number: 18,435
• Citation: 54 N.E. 389,153 Ind. 88
• Parties: Driver v. Driver
• Court: Indiana Supreme Court

54 N.E. 389

153 Ind. 88

Driver v. Driver

No. 18,435

Supreme Court of Indiana

June 29, 1899

From the Howard Circuit Court.

Reversed.

J. M Fippen, J. M. Purvis, Frank E. Gavin, Theo. P. Davis and James L. Gavin, for appellant.

R. B Beauchamp, for appellee.

OPINION

Baker J.

Appellee was granted a divorce. The only error assigned on the record as originally filed is the overruling of appellant's motion for a new trial.

The bill of exceptions containing the evidence fails to show that the two witnesses who were called upon to prove appellee's residence were resident freeholders and householders of this State. Proof of the qualification of these witnesses was prerequisite to the court's jurisdiction to determine the cause. Section 1031 R. S. 1881 and Horner 1897, § 1043 Burns 1894; Powell v. Powell, 53 Ind. 513; Prettyman v. Prettyman, 125 Ind. 149, 25 N.E. 179; Brown v. Brown, 138 Ind. 257, 37 N.E. 142. Though it is true that, if the jurisdiction of a circuit court depends upon the finding of certain facts, the exercise of jurisdiction implies the finding of such facts (Evansville, etc., Co. v. Winsor, 148 Ind. 682, 691, 48 N.E. 592), yet such an implication cannot stand on appeal in the face of an affirmative showing of all of the evidence upon which the court acted.

After the original record had been filed, appellee on motion procured a nunc pro tunc correction of the bill of exceptions in the trial court. Appellant waived an application for a writ of certiorari, and by agreement a supplement to the record was filed embodying the proceedings on the motion to correct. The correction, made after the proceedings had ceased to be in fieri, shows that evidence was given that the witnesses called to prove appellee's residence were resident freeholders and householders of the county. The court acted on oral proof alone. There was no memorial, memorandum, entry, or writing of any kind on which to base the correction. Appellant properly reserved and presents the question as to the court's power to make the correction under these circumstances.

The rule is stated in Morgan v. Hays, 91 Ind. 132: "It is within the power of the circuit and other nisi prius courts of the State to amend a bill of exceptions after it has been signed and made a part of the record and after the close of the term at which it was signed, where a proper case for the amendment of a record is made. To make such a case there must be some memorandum, memorial paper, record, or other minute of the transaction to amend by, of a date prior to, or at least of equal date with, the bill of exceptions." This rule has been maintained in this State in an unvarying line of decisions throughout a long course of years. Makepeace v. Lukens, 27 Ind. 435; Hamilton v. Burch, 28 Ind. 233; Uland v. Carter, 34 Ind. 344; Miller v. Royce, 60 Ind. 189; Schoonover v. Reed, 65 Ind. 313; Kirby v. Bowland, 69 Ind. 290; Seig v. Long, 72 Ind. 18; Williams v. Henderson, 90 Ind. 577; Chissom v. Barbour, 100 Ind. 1; Johnson v. Moore, 112 Ind. 91, 13 N.E. 106; Kelley v. Adams, 120 Ind. 340, 22 N.E. 317; Harris v. Tomlinson, 130 Ind. 426, 30 N.E. 214; Boyd v. Schott, 152 Ind. 161, 52 N.E. 752. The case of Cluck v. State, 40 Ind. 263, is inapplicable. It decides that this court cannot grant an application to correct the record of the trial court. It does not decide what evidence is required to warrant a trial court's corrections of its own record.

The reasons for the rule apply with at least as much force to the correction of bills of exceptions as to the correction of other parts of the record. Orders and judgments are written up by the clerk. Bills of exceptions are usually submitted to adverse counsel before being submitted to the judge for signature, as was done in this case. The judge has power,...