Harris v. Tomlinson
| Decision Date | 16 February 1892 |
| Docket Number | 14,801 |
| Citation | 30 N.E. 214,130 Ind. 426 |
| Parties | Harris v. Tomlinson et al |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled April 20, 1892.
From the Marion Superior Court.
Judgment affirmed.
T. E Johnson, S. M. Shepard and W. E. Niblack, for appellant.
F Knefler and J. S. Berryhill, for appellees.
The errors assigned require an examination of the evidence introduced upon the trial of the cause; and we are met at the threshold with the claim that the evidence is not in the record in such manner as to enable us to pass upon its sufficiency to sustain the finding and judgment.
The evidence, as we find it in the record, consists entirely of certain court records, executions, and sheriff's deeds, interrogatories and answers thereto. The bill of exceptions recites in the introductory clause that the plaintiff, to maintain the issues on his part and behalf, introduced the following "testimony;" also, in every instance, the term "offered in evidence," is used where the words "introduced in evidence" should have been.
We find, however, at the close of the bill of exceptions, the statement that "this was all the evidence given in the cause."
The context makes it clear that the word "testimony" refers to the evidence immediately following it, which, as we have said, was entirely documentary. While the word "testimony" is not synonymous with the word "evidence," it was in this instance used in that sense. We can not permit the simple misuse of a word, where the meaning is obvious, to defeat the operation of an instrument of such importance as a bill of exceptions.
The case of Kleyla v. State, ex rel., 112 Ind. 146, 13 N.E. 255, and others of similar import, where the bill of exceptions concludes with the statement that "this was all the testimony given in the cause," are not in conflict with this position.
The bill also shows that in connection with each instrument given in evidence the word "offered" appears where the word "introduced" is usually used; but, inasmuch as the record affirmatively shows that all the evidence offered was introduced, and constitutes a part of that which the bill says was "all the evidence given in the cause," the bill is not fatally defective on that account. This case is distinguishable in this respect from Goodwine v. Crane, 41 Ind. 335; American Ins. Co. v. Gallahan, 75 Ind. 168; Peck v. Louisville, etc., R. W. Co., 101 Ind. 366; Garrison v. State, 110 Ind. 145, 11 N.E. 2.
The bill of exceptions recites the giving in evidence of an execution issued on the 7th day of October, 1876, on a judgment rendered in the common pleas court of Marion county, and the return of the sheriff endorsed thereon. This execution and return are not set out in the transcript, but are marked as "not on file."
The appellee contends that the bill of exceptions is fatally defective, because it shows on its face that there was evidence given on the trial that is omitted from the bill. The authorities fully sustain this contention. State, ex rel., v. Marsh, 119 Ind. 394, 21 N.E. 543; Lawrenceburgh Furniture Mfg. Co. v. Hinke, 119 Ind. 47, 21 N.E. 542; Saxon v. State, 116 Ind. 6, 18 N.E. 268; Cowger v. Land, 112 Ind. 263, 12 N.E. 96; Louisville, etc., R. W. Co. v. Grantham, 104 Ind. 353, 4 N.E. 49; Stout v. Turner, 102 Ind. 418, 26 N.E. 85; Jennings v. Durham, 101 Ind. 391; Collins v. Collins, 100 Ind. 266.
In order to cure this defect in the record the appellant instituted a proceeding, by notice and motion, in the superior court of Marion county, before the judge who tried the cause, to amend and correct the bill of exceptions, by expunging therefrom all that part which recites the giving of the execution and return above mentioned in evidence.
The appellee appeared to the motion, and stubbornly contested the making of the amendment. The proceedings resulted in the making of an order for the amendment of the bill as prayed for, and this action was affirmed by the court in general term.
The appellee in this case appealed from this judgment to this court, where the appeal has been docketed as a separate cause. Tomlinson v. Harris, ante, p. 339.
Proceedings to amend bills of exceptions, like other applications for nunc pro tunc orders, are not actions separate and distinct from the original action, but are merely auxiliary thereto, and should, where an appeal in the main action is pending, be brought up on appeal as a part of that action, and not as an original case. Hamilton v. Burch, 28 Ind. 233; Seig v. Long, 72 Ind. 18; Hannah v. Dorrell, 73 Ind. 465.
The practice in this respect not having been uniform, we will treat the record in Tomlinson v. Harris, supra, as a return to a certiorari, which has been asked for in this action, and determine the questions involved upon their merits.
We are unable to agree with counsel for the appellant that a judgment ordering the amendment of a bill of exceptions is not such as may be appealed from, either from the trial court to the general term, or from the general term to this court. The practice in this State has uniformly recognized such right of appeal. Morgan v. Hays, 91 Ind. 132; Hamilton v. Burch, supra; Williams v. Henderson, 90 Ind. 577; Seig v. Long, supra.
The same rule applies to orders made amending records other than bills of exceptions. Uland v. Carter, 34 Ind. 344; Bales v. Brown, 57 Ind. 282; Douglass v. Keehn, 78 Ind. 199; Conway v. Day, 79 Ind. 318; Walker v. State, 102 Ind. 502, 1 N.E. 856.
In Douglass v. Keehn, 71 Ind. 97, it was held that an amendment of the record, made by the trial court upon due notice, could only be questioned by appealing therefrom.
The rule contended for would doubtless be correct where the amendment was made at the term, and while the proceedings were in fieri.
The appellee appeared specially to the notice served upon him of the application to amend the bill, and asked the court to quash the same, but his motion was overruled.
In this the court did not err. A summons is only required at the commencement of an original action. We believe it to be a rule of universal application that when a party has once been brought into court, either by a summons or a voluntary appearance, a mere notice is sufficient to bring him back into court in the same cause, in any subsequent proceedings. Where a summons in such case has been issued and served, it will be treated as a mere notice. Gray v. Robinson, 90 Ind. 527; Latta v. Griffith, 57 Ind. 329.
After full appearance, the appellee filed a motion to dismiss the petition, or application, to the court for the correction of the bill, and makes complaint of the action of the court in overruling his motion.
This method of testing the sufficiency of a motion for a nunc pro tunc entry is sustained by the authorities. Douglass v. Keehn, supra, and cases cited; Conway v. Day, supra.
The law does not contemplate the filing of formal pleadings in this class of proceedings, and no great strictness is required in the preparation of the motion, such as are usual and necessary in complaints and answers. It is a sufficient compliance with the requirements of law if the motion specifies with reasonable certainty the relief sought, and the grounds upon which the motion is founded. Gray v. Robinson, supra; Urbanski v. Manns, 87 Ind. 585; Blizzard v. Blizzard, 40 Ind. 344.
We have examined the motion filed in this case, and are satisfied that it makes a prima facie showing for such relief. We will at this time consider only two of the objections urged to its sufficiency. One is, that the appellant can not have a bill of exceptions of his own preparation corrected, and in support of this the case of Hannah v. Dorrell, 73 Ind. 465, is cited. All that is said in that case upon the subject is the mere suggestion that if the bill had been prepared by the party asking its correction a different question would be presented. The question was not before the court, and was consequently not decided.
When a bill has been signed and filed, it becomes at once a part of the record, and we know of no rule of law to prevent either party, upon a sufficient showing, from having clerical misprisions corrected. If the party at whose instance the bill was prepared and filed asks for its correction, it might possibly call for a closer scrutiny of the evidence showing that the plaintiff was not guilty of negligence, but it could extend no farther.
The other objection is that it does not show that the proceedings were instituted within two years from filing the bill of exceptions.
We are of the opinion that this is not controlled by section 396, R S. 1881, but that the court may, in the exercise of one of its inherent powers, long antedating the enactment of our code of procedure, so correct mistakes as to make its record speak the truth. Miller v. Royce, 60 Ind. 189. In the latter case a mistake was corrected after ten years, and in Conway v. Day, supra, a correction was made after the cause had been appealed to this court and...
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