Hayes Freight Lines v. Oestricher

• Decision Date: 04 October 1946
• Docket Number: 17417.
• Parties: HAYES FREIGHT LINES, Inc., et al. v. OESTRICHER.
• Court: Indiana Appellate Court

68 N.E.2d 792

117 Ind.App. 143

HAYES FREIGHT LINES, Inc., et al. v. OESTRICHER.

No. 17417.

Appellate Court of Indiana, in Banc.

October 4, 1946

Carl M. Gray and Edward L. Waddle, both of Petersburg, for appellants.

Sanford Trippet, of Princeton, for appellee.

DRAPER, Judge.

Prior to the filing of our original opinion in this case (66 N.E.2d 612) we overruled, without opinion, the appellee's motion to dismiss this appeal. In her petition for rehearing the appellee insists we erred in so doing, and we deem it advisable to put our reasons in writing.

The appellee first asserts this is a 'term time' appeal which should be dismissed because, she says, no appeal bond with penalty and surety approved by the court was ever filed.

The distinctions between term time and vacation appeals have been abolished. The giving of a bond was not necessary to the perfection of this appeal. To file or not to file a bond was optional with the appellants, depending upon whether or not they desired the suspension of the enforcement of the judgment pending appeal. Rule 2-3, 1943 Revision. Whether the bond actually furnished was properly filed and approved so as to justify an order staying execution pending appeal is not before us. Assuming arguendo that it was not, that fact would not affect appellants' right to appeal in this case.

It is next insisted that the motion for new trial was not properly filed. The verdict was returned on April 3, 1945. On May 1 1945, the court being then in vacation, the appellants caused the motion for new trial to be taken to the clerk's office. The court reporter, who was present at the clerk's office, took the motion and made a notation in the bench docket as follows: 'Comes now the defendant and files motion for new trial herein.' (Emphasis ours.) She then handed the motion to the clerk, who stamped the file mark thereon and placed it on file with the other papers in said cause, where it has since remained. The clerk then made an entry in the civil order book showing the filing of said motion. It does not appear that the clerk made a minute of the filing in the entry docket, showing the date of filing and affixing his initials thereto, or made a vacation order-book entry showing the filing and the date thereof, all in accordance with the requirements of Burns' 1933, § 2-2403.

The motion was delivered to the clerk for filing at the latter's office within the time allowed. The record made was sufficient to furnish evidence of the filing and to call the motion to the attention of the court. Under such circumstances the failure of the clerk to properly record the evidence of the filing will not be permitted to deprive the appellants of their right to appeal, and the filing will be held to be sufficient. Northland v. Lincoln National Life Insurance Co., 1943, 220 Ind. 692, 42 N.E.2d 41, 46 N.E.2d 203.

The appellee lastly challenges the form of the bill of exceptions containing the evidence and the sufficiency of its filing the bill being the foundation upon which the errors asserted by the appellant depends.

She insists the bill does not show what it purports to bring into the record, whether the evidence, instructions or what not that the certificate of the trial court does not state that it contains all or any of the evidence given in the cause or that the evidence set forth therein was actually given; that it has neither formal commencement nor conclusion; that it was filed in vacation and that the transcript does not show where or in what court it was filed, or that it was ever properly filed.

We first take up the question of filing. A bill of exceptions may properly be filed in vacation. Rule 2-3 provides that 'Every bill of exceptions tendered prior to the filing of the transcript (which, of course, must itself be timely filed), in the appellate tribunal shall, if correct, be signed by the judge and filed with the clerk, which...