Gray v. Singer
| Decision Date | 26 January 1894 |
| Docket Number | 16,607 |
| Citation | 36 N.E. 209,137 Ind. 257 |
| Parties | Gray v. Singer, Administrator |
| Court | Indiana Supreme Court |
From the Ripley Circuit Court.
Appeal dismissed.
E. P Ferris and S. M. Jones, for appellant.
A Stockinger and C. K. Bagot, for appellee.
The appellee, as administrator of the estate of Nancy Case, sued the appellant for a personal judgment and the foreclosure of a mortgage.
The transcript discloses the filing of a complaint, demurrer thereto, with the court's ruling against the demurrer and a bill of exceptions. No record entries appear, excepting those upon said three filings and said ruling.
The bill of exceptions recites further proceedings up to, and including, the general finding and conclusion of the court in favor of the appellee, but it is not recited that any of such proceedings were entered upon the order-books of the court.
It is insisted by the appellee that the record discloses in no proper manner any final judgment or decree of the circuit court, from which an appeal lies, and that we can not, therefore, entertain this proceeding.
Under section 650, R. S. 1881, all record entries of the clerk, and all papers pertaining to the cause, and filed therein, with certain stated exceptions, are to be deemed a part of the record. Certain other matters become a part of the record only by bills of exception. It is the certificate of the clerk that gives verity to the record entries, and it is the signature of the judge to the bill of exceptions that gives verity to the statements properly contained in such bill. If it were the office of the bill of exceptions to bring into the record the order-book entries, including the final entry of the judgment or decree, it has failed to perform that office in this instance.
The bill recites, as a statement of the judge, that the motion for a new trial was ruled upon, and that he found and adjudged that the plaintiff should recover a sum stated. These recitals may be literally true, and no entry of either proceeding be found upon the order-book. It is only by the record that the judgments of a court can be known.
Under the statute cited, where entries appear in the record as the transcriptions of the clerk, and they are certified under his hand and the seal of the court, they become legally authentic.
In the present case, as to the filing of answers, demurrers thereto, replies, and the rulings thereon, together with the submission, trial, finding and conclusion of the court, we are asked to look to the bill of exceptions. It is not necessary that we should hold that such pleadings can not become a part of the record by bill of exceptions, but it is sufficient when we decide that order-book entries are an essential part of the record and without them the record is incomplete. It is manifest that the record entries in a cause are necessary to a complete transcript, and the omission of any of such entries as may involve the rulings complained of, is fatal.
In Elliott's Appellate Procedure, section 198, it is said: "If the transcript shows on its face that it covers only part of the rulings and proceedings upon a single and independent matter, it would be insufficient."
This is not an instance where the bill of exceptions and the entries made by the clerk are in conflict, but it is where the record is silent as to the entry of a judgment or decree.
Nichol v. Thomas, 53 Ind. 42 (51), cited by the appellant in support of the record, as made by the transcript, is not in point. It was there held that a motion for a new trial became a part of the record without a bill of exceptions.
It is insisted that the sufficiency of the...
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