Gish v. Gish

• Decision Date: 26 May 1893
• Docket Number: 708
• Citation: 34 N.E. 305,7 Ind.App. 104
• Parties: GISH v. GISH
• Court: Indiana Appellate Court

34 N.E. 305

7 Ind.App. 104

GISH v. GISH

No. 708

Court of Appeals of Indiana

May 26, 1893

From the Cass Circuit Court.

Judgment affirmed.

R Magee and G. W. Funk, for appellant.

J. H Gould and G. R. Eldridge, for appellee.

OPINION

DAVIS, J.

This was an action by appellee, against appellant, on a promissory note.

Issues were joined, and the cause was submitted to a jury for trial and on verdict in favor of appellee judgment was rendered against appellant, for nine hundred and five dollars, on the 24th of February, 1892.

Several errors are assigned, but the only errors discussed are that "the court erred in overruling the appellant's motion for a new trial," and in overruling the motion in arrest of judgment.

It is a well established rule of practice, in this court, that errors which are not discussed are regarded and treated as waived. Mahoney v. Gano, 2 Ind.App. 107, 27 N.E. 315.

In a brief filed in behalf of appellee, on the 30th of December, 1892, it is earnestly contended that no question is presented, on the first error discussed, for our consideration, because the evidence is not in the record. No reply has been filed to this brief. We are, therefore, first required to determine whether the record brings before us for decision any question in regard to the merits of the controversy.

The record, on the day the judgment was rendered, recites, "and 180 days are allowed the defendant in which to file bill of exceptions."

Afterwards, on the 9th of March, an appeal bond was filed and approved.

Immediately following the bond there appears the following entry:

"Be it remembered, * * * the following proceedings were had," etc. Then come the instructions. The instructions are not preceded by any formula for the beginning of a bill of exceptions. In conclusion, however, there is the usual formal ending of an ordinary bill of exceptions. There is no record or independent entry or statement, except in the clerk's certificate, showing the filing of the instructions or bill of exceptions, but it is recited in the formal conclusion, above referred to, that the bill of exception was presented to the judge on the 8th of August, and that it was signed on the 22d, and the stamp of the clerk indicates that it was filed on the 23d of August, 1892.

Immediately following the signature of the judge thereto, and without any preliminary entry, statement, or memorandum showing the filing thereof, there is attached to and included in the transcript a bill of exceptions containing the evidence, in which it is recited in conclusion, "the foregoing being all the evidence in the above entitled cause." This bill, as it appears therein, was presented to the judge on the 8th of August, signed on the 22d, and, as shown by the file mark, was filed on the 23d of August, 1892.

The certificate of the clerk, at the conclusion of the transcript, is as follows:

"The State of Indiana, County of Cass, ss.:

"I, Charles W. Fisk, clerk of the circuit court of Cass county, Indiana, hereby certify that the foregoing is a full, true and complete copy and transcript of all entries made, and all papers filed, in the above entitled cause, as appears from the records made and papers filed in said cause, now on file in my office, together with and including the defendant's original bill of exceptions number one, filed in my office August 23d, 1892, containing and being all the instructions given in said cause, and exceptions thereto and signature of the judge, and further including defendant's original bill of exceptions, number two, containing and being the long hand manuscript and transcript of the short hand notes of the evidence given in said cause, taken, made and transcribed by Jesse Taber, whom I hereby certify to have been at the time of said trial, and who has ever since been and is now, the official stenographer and reporter of said Cass Circuit Court.

"Witness my hand and the seal of said court at my office at Logansport, Cass county, Indiana.

[SEAL.] "C. W. FISK, Clerk."

It clearly appears in this case that neither of the bills of exceptions, so filed by appellant, has been copied by the clerk. The original bills are incorporated in the transcript and brought here as part of the record.

The course adopted, so far as the evidence in the long hand manuscript of the reporter is concerned, is the proper practice, and in this respect the evidence as taken down and transcribed by the stenographer is in bill of exceptions, No. 2. In order, however, to bring bill of exceptions, No. 1, containing the instructions, before this court, such bill should have been copied by the clerk.

ELLIOTT, C. J., in a recent case, says: "We adjudge the better rule to be this: Where a bill of exceptions upon a ruling denying a new trial is taken for the purpose of getting the stenographer's report of the evidence, with its incidents, into the record, the original bill may be certified up to this court as part of the record. All there is of such a bill, besides the report of the evidence, is composed of formal parts and brief recitals, so that little would be left to be copied, if the report of the evidence were taken out. Confusion is avoided by sending up the bill without detaching the evidence, and only a very little matter outside of the report of the evidence comes up in its original condition. It is much more consistent with principle, and much safer to require the entire original bill to be certified, than it is to devolve upon the clerk the duty of determining what shall be left in and what taken out. The rule we here declare enables parties to get the longhand manuscript into the record without incurring the useless expense of having it copied, prevents confusion in the record and gives fair and reasonable effect to the statute concerning official shorthand reporters.

"But the rule we declare does not have, and can not be made to have, any application to any other bills of exceptions, except such as are prepared for the purpose of bringing into the record the longhand manuscript of the official reporter and its necessary incidents. All other bills of exceptions must be copied by the clerk. Nor can the rule apply to a bill of exceptions wherein other matters than the longhand report and matters legitimately connected therewith are sought to be brought into the record. In order to come within the rule stated, the bill of exceptions must be confined to the single office of exhibiting the report of the evidence and the matters directly and properly pertaining thereto." McCoy v. Able, 131 Ind. 417, 30 N.E. 528.

Under the rule above enunciated, the instructions in the case in hand are not properly in the record, and no question arising thereon can be considered or determined by us. This is so because the original bill was incorporated into the transcript.

The question remains whether the bill of exceptions containing the evidence is properly in the record, and if so, whether it contains all the evidence given on the trial of the cause.

It is insisted, among other things, that the bill of exceptions was not filed within the time fixed by the court. Conceding this to be true, it does appear in the body of the instrument, preceding the signature of the judge, that it was presented to the judge within that time, and as to this point such presentation was sufficient.

In the case of McCoy v. Able, supra, the court says: "As the law now stands the time of the filing is not of controlling importance, for the presentation of the bill to the judge, if shown in the body of the instrument, controls the question."

It is also insisted that the omission of the word "given" in the statement, and this was "all the evidence in the above entitled cause," is fatal. We can not concur with counsel on this proposition. The use of the word "given" is not indispensable or essential. The correct rule is thus stated by Judge ZOLLARS: "In order that this court may pass upon the evidence, the record must affirmatively show that it contains all of the evidence given below. Any statement in the bill of exceptions, that will show that fact, will be sufficient." Beatty v. O'Connor, 106 Ind. 81, 5 N.E. 880; see section 823, Elliott's App. Proced., and authorities there cited.

It is contended by counsel for appellant that, in the absence of an independent record entry showing the filing of the bill of exceptions, the bill of exceptions containing the evidence can not be considered as a part of the record on this appeal.

The decisions in this State are not, as we view them, in all respects harmonious on the question as to what is essential to show that a bill of exceptions containing the evidence is properly a part of the transcript of the record on appeal.

Judge ELLIOTT says: "A bill of exceptions, although signed, is not part of the record until it is filed. A record entry must be made showing its filing and the date. It has been held in many cases that the filing must be shown by an independent record entry and that it can not be shown by a recital in the bill." Elliott's App. Proced., section 805.

When time is given beyond the term for the filing of such bill of exceptions, and the bill is afterwards filed in vacation such independent record entry, however or wherever made, is of necessity an ex parte act of the clerk. Whether in such case the independent record entry shall be a vacation order-book entry, or simply a statement or memorandum, in the transcript, in substance and to the effect that the bill was filed, or whether it is essential for such formal entry or statement to precede the bill of exceptions, are questions which have not been clearly and...