Evansville Furniture Co. v. Freeman

• Decision Date: 10 December 1914
• Docket Number: No. 8287.,8287.
• Citation: 107 N.E. 27,57 Ind.App. 576
• Parties: EVANSVILLE FURNITURE CO. v. FREEMAN.
• Court: Indiana Appellate Court

57 Ind.App. 576

107 N.E. 27

EVANSVILLE FURNITURE CO.

v.FREEMAN.

No. 8287.

Appellate Court of Indiana, Division No. 1.

Dec. 10, 1914.

On rehearing. Overruled.

For former opinion, see 105 N. E. 258.

HOTTEL, C. J.

Appellant, in a petition for rehearing, very earnestly insists that this court has erred in its opinion herein. It is first urged that the court erred in holding that no question is presented by appellant's first assignment of error, which challenges “the ruling of the superior court of Vanderburgh county” on “the demurrer to the complaint.”

[1] It is contended by appellant that the complaint set out in the transcript on file in this court “is the one filed (our italics) in the Warrick circuit court with the transcript on change of venue from the superior court of Vanderburgh county.” This claim may be correct, but it assumes the fact on which the controversy turns, viz. that such complaint was filed in the Vanderburgh superior court. The transcript in this court contains a copy of the transcript of the entries and proceedings had in the superior court of Vanderburgh county which was filed with the clerk of the court of Warrick county after the venue of the case was changed to the last-named county. The certificate of the clerk of the Vanderburgh superior court to said transcript of the proceedings had in that court states that such transcript “is a full, true and complete copy of the entries, orders, and proceedings of said court made in said cause as the same appears of record” (our italics) in his office.

This court must treat the record before it as speaking the truth. There is no entry to be found in said transcript showing the filing of said complaint, or showing the filing of any complaint in the Vanderburgh superior court, but, on the contrary, the first entry shown in such transcript is that set out in the original opinion. From the transcript of the record as it comes to us this court cannot say that the complaint appearing therein was ever filed in the Vanderburgh superior court, nor is there anything in the record from which such complaint can be identified by this court as the one to which was addressed the demurrer, the ruling on which is here assigned as error. We therefore feel that the original opinion correctly holds that, on account of the state of the record, no question is presented by the first assigned error. As supporting this conclusion, see Consolidated Stone Co. v. Staggs, 164 Ind. 331, 73 N. E. 695;Southern R. Co. v. Martin, 160 Ind. 280, 66 N. E. 886; section 424, Burns 1908.

[2] Before an appealing party can obtain a reversal on any ruling of the trial court assigned in this court as error, he must bring to the court a record which properly presents such ruling. Dederick v. Baumgartner, 46 Ind. App. 403, 92 N. E. 663;Marsh v. Bower, 151 Ind. 356, 51 N. E. 480. We might add, however, that a careful examination of the complaint set out in the record convinces us that it states a cause of action under section 8029,...