Hamrick v. Loring

• Decision Date: 11 November 1896
• Docket Number: 17,799
• Citation: 45 N.E. 107,147 Ind. 229
• Parties: Hamrick, Trustee, v. Loring et al
• Court: Indiana Supreme Court

45 N.E. 107

147 Ind. 229

Hamrick, Trustee, v. Loring et al

No. 17,799

Supreme Court of Indiana

November 11, 1896

Rehearing Denied March 10, 1897.

From the Marion Circuit Court.

Affirmed.

Newton M. Taylor, for appellant.

Kealing & Hugg, Claypool & Claypool, Morris, Newberger &amp Curtis, and W. A. Pickens, for appellees.

OPINION

Hackney, J.

The appellant was the trustee of the estate of Lawrence A Nageleison by the voluntary assignment of the latter for the benefit of his creditors.

The appellees, William Loring and others, by original and amended petitions, sought, in the lower court, in which such assignment was pending, allowances against said estate, and, as to the proceeds of the sale of certain chattels, a preference as against general creditors and as against the trustee for the services of himself and his attorneys in said trust. The preference was claimed to arise in favor of the appellees and others by reason of a chattel mortgage executed by the assignor to Loring, securing his claim and indemnifying and saving him from the payment of claims owing by the assignor and Loring, to the appellees and such others. The appellant also sought an allowance for himself and his attorneys on account of services rendered in the execution of said trust. Issues were formed upon the various petitions and, by agreement of all parties, the matters at issue upon the several petitions were consolidated and submitted to the court for trial, finding and judgment upon one hearing.

A trial resulted in a finding and judgment declaring the several sums due the appellees and others from said estate, declaring the priority of such claims, and directing the appellant to pay into the clerk's office, from the funds arising from the sale of the mortgaged chattels, a specified sum for the payment of such preferred claims. It was adjudged, also, that said trustee take from said funds no part thereof on account of his services or those of his attorneys, until all of said preferred claims were fully paid. Five of seven specifications of appellant's motion to modify the judgment were overruled, and his motion for a new trial was overruled. These are the only rulings of the trial court assigned as error.

Appellees have moved this court to dismiss the appeal for the alleged reason that it is not from a final judgment or an interlocutory order from which an appeal lies. The arguments turn upon the question as to whether the record discloses an appeal from a mere order of distribution upon a current report, or from a judgment finally determining the rights of claimants. We have sufficiently stated the questions presented to the trial court to show that the appellees are in error in their contention upon this question, and the motion cannot prevail.

Another contention on behalf of the appellees is that the evidence is not properly in the record, and that no question involving it can be considered. The transcript contains a bill of exceptions signed by the trial judge and filed in the clerk's office on a day named. This bill contains what purports to be the original longhand manuscript of the shorthand reports of the evidence, but the record in no manner discloses the filing of this manuscript in the clerk's office before it was incorporated in such bill, nor otherwise than as a part of the bill. This failure violates the statutory requirement, where the evidence is not copied by the clerk and where the original is sought to be made a part of the record. Section 1476, Burns' R. S. 1894 (1410, R. S. 1881); DeHart v. Board, etc., 143 Ind. 363; Beatty v. Miller, 146 Ind. 231, 44 N.E. 8; Carlson v. State, 145 Ind. 650; Marvin v. Sager, 145 Ind. 261, 44 N.E. 310; Smith v. State, 145 Ind. 176, 42 N.E. 1019; Holt v. Rockhill, 143; Ind. 530.

It is true that within the bill of exceptions there is a certificate of the clerk of the trial court to the effect that on a day named, being the same day upon which the bill of exceptions was filed, the longhand manuscript of the evidence was filed in his office and is the same which is embodied in the bill of exceptions. This certificate, if we observe it as a proper method of disclosing the fact of a filing, does not advise us whether such filing was as a part of the bill, was separate from it, or was before or after the filing of the bill. All that the clerk certifies may be true and the manuscript may have been filed after the bill of exceptions was filed. From the facts disclosed the clerk may have judged that the filing of the bill, including the manuscript, was a filing of the manuscript. We must hold, therefore, that the appellees' contention in this respect shall prevail.

It is insisted, also, for the appellees, that no question arises for consideration in this court upon the action of the trial court in overruling the appellant's motion to modify the judgment, for the reason, as urged, that neither the motion nor the reasons therefor, have been brought into the record by a bill of exceptions. This insistence, under our practice must prevail. Russ v. Russ, 142 Ind. 471, 41 N.E. 941; Quill v. Gallivan, 108 Ind. 235, 9 N.E. 99; Forsythe v. Kreuter, 100 Ind. 27; Whipple v. Shewalter, 91 Ind. 114; Evansville, etc., R. R. Co. v. Frank, 3 Ind.App. 96, 29 N.E. 419; Elliott's...