F.W. Cook Brewing Co. v. Ball

• Citation: 52 N.E. 1002,22 Ind.App. 656
• Parties: F. W. COOK BREWING CO. v. BALL.
• Decision Date: 22 February 1899
• Court: Court of Appeals of Indiana

22 Ind.App. 656
52 N.E. 1002

F. W. COOK BREWING CO.
v.
BALL.¹

Appellate Court of Indiana.

Feb. 22, 1899.

Appeal from circuit court, Warrick county; C. W. Armstrong, Special Judge.

Action by Harry N. Ball against the F. W. Cook Brewing Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.

Chas. L. Wedding, for appellant. Hornbrook & Wheeler and J. E. Williamson, for appellee.

BLACK, C. J.

The appellee recovered judgment against the appellant in the sum of $1,000 for personal injury. It is assigned that the court erred in overruling the appellant's motion for a new trial.

The appellee has moved to dismiss the appeal. The first and second grounds of the motion are, in effect, because the evidence is not properly in the record, and because “the bill of exceptions” is not properly in the record. These are not good grounds for a motion to dismiss an appeal. It is proper to call the attention of this court to any such supposed insufficiency in the record, and this court, the matter coming to its notice by its own examination of the record or through the suggestion of counsel, will not reverse the judgment for an alleged error insufficiently shown by the record.

The third ground in the motion to dismiss is that the first brief filed by the appellant is not a sufficient brief, under the rules of this court. While the brief in question does not contain a full and satisfactory discussion of the assigned errors relied upon, it cannot be said to be entirely inadequate.

The fourth and last ground in the motion is that the transcript contains no præcipe giving directions to the clerk what to certify up; that in this case his duty was to certify a complete record, while the record itself shows that it is incomplete, in that it shows that the action originated in the Vanderburgh circuit court, while the record gives no history of the case in said court. The record shows that the complaint, which is set out, was filed in the court below on change of venue from the Vanderburgh circuit court. At the end of the transcript, the clerk certifies that “the above and foregoing transcript contains true and complete copies of all papers and entries in said cause, as set out.” The appellee submitted his cause to the court below and recovered his judgment under the complaint so set out in the

[52 N.E. 1003]

record. He is not in position to deny the jurisdiction of the trial court, and he does not pretend to do so. If the certificate of the clerk, as above stated, was not correct, and there were other papers or entries constituting parts of the record of this cause remaining in the court below, a transcript thereof, upon proper application, might have been brought into this court. We do not find any sufficient reason for the dismissal of the appeal.

The question whether or not the evidence is in the record is one which is always before us when any matter requiring its presence is to be considered. If we find, upon examination of the transcript, that the evidence is properly in the record, we need not so state, unless we are called upon to do so by some proper objection or suggestion of counsel. As already remarked, a motion to dismiss the appeal will not lie for such a cause, and, having concluded that the evidence is properly before us, we perhaps might pass the matter without further remark, yet we will notice the objections of counsel briefly.

The transcript is without any fault in this regard, but it is claimed on behalf of the appellee that the longhand manuscript of the evidence was not incorporated in the bill of exceptions when it was presented to the judge and signed by him, but that it was attempted to incorporate it by a direction to the clerk by the words, “Here insert.” In seeking to impeach the record in this court in this respect, the appellee procured a certiorari, and the clerk of the court below has certified to this court the original bill of exceptions, except, of course, the original longhand report of the evidence already here. Affidavits relating to this matter, also, have been filed in this court. If we were to try the question upon the showing thus made, our conclusion would not uphold the appellee's position. But the record in this court cannot thus be made up or changed. The appeal must be determined upon a transcript of the record remaining in the court below, except so...