Ehrisman v. Scott

Decision Date29 December 1892
Docket Number666
Citation32 N.E. 867,5 Ind.App. 596
PartiesEHRISMAN v. SCOTT ET AL
CourtIndiana Appellate Court

From the Marion Superior Court.

Judgment affirmed.

G. W Spahr, for appellant.

A. C Ayres and A. Q. Jones, for appellees.

OPINION

REINHARD, J.

The appellees sued the appellant, and recovered of him the price of a quantity of wheat alleged to have been stolen from them by other parties from freight cars at a railroad station and received by the appellee, who is a miller.

But three propositions are discussed in the brief of appellant's counsel. These are:

1. The insufficiency of the evidence.

2. Error in the examination of a witness.

3. Error in giving instructions to the jury.

To the correct determination of the first two of these questions it is essential that the evidence should be in the record by a proper bill of exceptions. The paper purporting to be such bill contains no statement that "this was all the evidence given in this cause," nor words of equivalent import. That this is necessary in order to render the bill of exceptions valid has been so frequently decided that it would seem quite unprofitable to cite authorities in support of the proposition. See, however, the following: Sandford Tool etc., Co. v. Mullen, 1 Ind.App. 204, 27 N.E. 448; Seig v. Long, 72 Ind. 18; Brock v. State, ex rel., 85 Ind. 397; Beatty v. O'Connor, 106 Ind. 81, 5 N.E. 880; Kleyla v. State, ex rel., 112 Ind. 146, 13 N.E. 255; Works Pr., section 1078, and note; Elliott App. Proc., section 823.

The learned authors last cited, at the section referred to, make use of the following language with reference to the point under consideration:

"It has been said, we may incidentally remark, that the adherence to a rigid rule is unwise because too technical, but this is only a partial view of the question. One great virtue of a rule is to secure certainly and to prevent a consumption of the time of the court in determining whether the evidence is or is not in the record. It is no great hardship to require parties to obey a settled rule, but there is hardship and uncertainty in a practice that leaves each case to be determined as a single and isolated instance."

Appellant's counsel have not pointed out to us any way to surmount this difficulty. The only attempt made anywhere in or about the paper designated as a bill of exceptions at certifying to what it contains is in the certificate of the official stenographer, which states that "the foregoing is a true, complete and impartial report of the evidence, rulings of the court and exceptions thereto," and it might be argued that this language is sufficient to meet the requirements of the rule referred to.

It is quite true that the exact formula above employed need not be used since the abrogation of the rule of the Supreme Court prescribing it, and it is sufficient if equivalent terms, or terms conveying a similar meaning, are resorted to. Brock v. State, ex rel., supra.

But there must be some expression by the judge, either in the bill of exceptions or in his certificate, wherein it is declared that such bill embodies all the evidence given at the trial. If we grant that the words of the stenographer that "the foregoing is a true, complete and impartial report of the evidence," are sufficient to express the meaning that "this was all the evidence given in the cause," it remains true, also, that such words are not those of the judge, but of the stenographer. But it is the judge's certificate, or signature, that gives verity to the bill, and to him alone this court must look for a declaration that the evidence is all in the record. Lyon v. Davis, 111 Ind. 384, 12 N.E. 714. While it is not essential, as we have seen, that such declaration should be embodied in his official certificate, it should appear somewhere in the record, and must purport to come from the judge. By signing the bill the judge adopts and approves it, and thereby certifies every...

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