Fed. Union Sur. Co. v. Schlosser
| Decision Date | 26 January 1917 |
| Docket Number | No. 9131.,9131. |
| Citation | 114 N.E. 875,66 Ind.App. 199 |
| Parties | FEDERAL UNION SURETY CO. et al. v. SCHLOSSER. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Marshall County; Harry Bernetha, Judge.
Action by Samuel Schlosser against the Federal Union Surety Company and William L. Wallace. Judgment for plaintiff, motion for new trial overruled, and defendants appeal. Affirmed.Henley & Baker, of Indianapolis, E. C. Martindale, of Plymouth, Henley, Fenton & Joseph, of Indianapolis, for appellants. Harley A. Logan, of Plymouth, for appellee.
This was an action brought by appellee against appellants for the breach of a contract between appellee and appellant Wallace for the construction of a dwelling house, and on a bond executed by appellant Wallace as principal and appellant company as surety, given to secure the performance of such contract. The complaint is in one paragraph, on which issues were duly joined. A trial was had by a jury, which returned a verdict against appellants for the sum of $2,200, on which judgment was rendered. Appellants filed their motion for a new trial, which was overruled, and the proper exception reserved. Appellant Federal Union Surety Company (hereafter designated as the company) appealed, and assigned errors as follows: First, that the court erred in sustaining appellee, Schlosser's, demurrer to the amended third paragraph of appellant Federal Union Surety Company's answer. Second, that the court erred in overruling appellant Federal Union Surety Company's motion for a new trial. Appellant Wallace not having assigned errors presents no question to this court for consideration.
[1][2] Appellant company not only impliedly waives its first assignment of error by failing to present the same in its brief, but expressly does so by a statement under the head “Proposition,” which leaves the action of the court in overruling the motion for a new trial, as the only error for the consideration of this court. Appellee contends that the evidence is not in the record, as there is no proper showing that the bill of exceptions containing the evidence was filed either in open court or in the clerk's office, as required by section 657, Burns 1914. Such fact must be shown before the evidence will be considered a part of the record. Elrod v. Purlee (1905) 165 Ind. 239, 73 N. E. 589, 74 N. E. 1085;McCormick Harvester Co. v. Smith (1899) 21 Ind. App. 617, 52 N. E. 1000.
[3] It has been repeatedly held that the filing of the bill of exceptions may be shown, either by an order book entry, or the certificate of the clerk to the transcript. McCormick Harvester Co. v. Smith, supra; Ladoga Can. Co. v. Corydon Can. Co. (1912) 52 Ind. App. 23, 98 N. E. 849. Appellants have not pointed out any order book entry showing such filing, and we therefore assume there is none.
[4][5] The question then arises, Is such filing shown in any other recognized manner? Appellants evidently rely on the clerk's certificate to the transcript to show such fact. We find two certificates by the clerk; one, evidently the original certificate, bearing date of July 31, 1914, and another, bearing date of November 3, 1915, purporting to be an amended certificate, made in pursuance of an order of this court of October 28, 1915. The first of said certificates clearly does not show the filing of such bill of exceptions, as the statute requires, and the second likewise fails to make a sufficient showing in that regard. In view of the presence of the second certificate, we assume that appellants do not contend that said first certificate makes a sufficient showing as to the filing of such bill of exceptions. We expressly hold that it does not, and now direct our attention to the contents of the second certificate, dated November 3, 1915. We find that this certificate contains the following recital as to the filing of such bill of exceptions:
“And I do hereby further certify that said original bill of exceptions containing the evidence in said cause was filed in my office on or about the 3d day of September, 1914, and after the same was signed on the 3d day of September, 1914, by the judge who tried said cause, as I am informed and believe through such information; but there is no memoranda of the filing in my office nor have I any independent recollection thereof.”
It will be observed that the clerk making the certificate expressly states in substance that there is no memorandum of such filing in his office; that he has no independent recollection of such filing being made; and that he makes the statements he does with reference thereto, solely on belief, based on such information. We cannot hold that such a certificate is a sufficient showing as to the filing of such bill of exceptions. A legal writer has defined a certificate to be:
The evident purpose of requiring a certificate in this connection is to furnish the court satisfactory proof of the verity of the record entries and the identity of the bill of exceptions in such transcript, and of the facts recited in the certificate itself.
The identity of the whole record depends upon the certificate of the clerk on appeal, and can it be said that such an important matter, upon which the rights of litigants depend, can be based on mere hearsay evidence, as recited in the certificate under consideration? Such evidence could not be received in the trial court to establish any fact, and certainly ought not be received in this court to establish either the identity or the verity of the record, or any steps taken in perfecting the appeal. To do so would in effect allow a clerk, who confessedly has no recollection in the matter, and no memorandum in his office by which to refresh his recollection, to hold a sort of court of inquiry, hear such evidence as he may desire, in the absence of one or both of the parties in interest, and then certify to such conclusion as he might be able to reach from such investigation. The mere mention of such proceeding is sufficient to condemn it, and yet the certificate in question would permit it, and keep within the truth of the statement made. In order for the clerk to certify, he must have a proper knowledge of the facts, and while an order book entry is not imperative, since such fact may be shown by the clerk's certificate, still such an entry would guard against any lapse of memory and possible dispute as to the facts, and is no doubt the better practice.
The lack of knowledge on the part of the clerk, as to the filing of such bill of exceptions, may have appeared in the proceeding to obtain the writ of certiorari, in pursuance of which the second or amended certificate was filed, but in granting such writ this court did not assume to pass upon the sufficiency of such knowledge, but sought only to give appellants every reasonable opportunity to bring all appropriate matter into the record, so that the appeal might be determined on its merits, if possible. We therefore conclude that the evidence is not in the record, and any questions depending on it for determination cannot be considered.
The objection made by appellee that the transcript of the clerk is not in the record has been met by an amendment, subsequently made under authority of this...
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