John's Cash Furniture Stores v. Mitchell, 18527

• Decision Date: 18 April 1955
• Docket Number: No. 18527,18527
• Citation: 125 N.E.2d 827,126 Ind.App. 231
• Parties: JOHN'S CASH FURNITURE STORES, Inc., C. Edward Corps, Earl Meredith, Otho Bronnenberg, Appellants, v. Lillian MITCHELL, Appellee.
• Court: Indiana Appellate Court

Page 827

125 N.E.2d 827

126 Ind.App. 231

JOHN'S CASH FURNITURE STORES, Inc., C. Edward Corps, Earl Meredith, Otho Bronnenberg, Appellants, v. Lillian MITCHELL, Appellee.

No. 18527.

Appellate Court of Indiana, In Banc.

April 18, 1955.

Johnson & Austin, Anderson, for appellant.

Grace B. DeArmond & Lawrence Booram, Anderson, for appellee.

KELLEY, Chief Judge.

Action by appellee against appellants by complaint in three paragraphs. The first paragraph of the complaint was for false imprisonment, the second paragraph for trespass to personal property, and the third paragraph for malicious prosecution. The issues were appropriately closed and submitted to trial by a jury. The jury returned a general verdict: 'We, the Jury, find for the plaintiff (appellee) against all defendants and that she recover from the defendants by way of damages, the sum of $3,000.00.' Appellants' motion for a new trial was overruled, hence this appeal.

The new trial motion asserts that the verdict is contrary to law, that the court erred in refusing to sustain appellants' motion for a directed verdict, and complains of the giving of certain instructions over appellants' objection and the refusal to give certain of appellants' tendered instructions.

Appellee urges that the appeal be dismissed or the judgment affirmed on the asserted grounds that the evidence is not in the record, that certain exhibits are omitted and others are improperly inserted in the transcript, and that appellants' brief is defective in certain particulars.

We have carefully examined and considered the various insufficiencies suggested by appellee. While it must be conceded that appellants' brief leaves much to be desired in model presentation, yet we are of the opinion the brief evinces a good faith effort, sufficient to enable us to comprehend the matters in issue.

Appellee says the evidence is not in the record because the clerk's certificate does not certify that a bill of exceptions containing the evidence was filed with him. In his certificate the clerk states, 'I further certify that the above and foregoing Bills of Exceptions were filed with me on the 11th day of January, 1954.' There were only two bills of exceptions, one contained the evidence, the other the appellants' objections to certain instructions. The clerk's certificate recites that the 'Bills of Exceptions' were filed with him. We hold such to be sufficient to show the filing with him of the Bill of Exceptions containing the evidence.

Appellee further contends that the judge's certificate fails to show the tendering to him of a bill of exceptions of the evidence or that he ordered the same filed as a part of the record. Said judge's certificate, appearing at the conclusion of the evidence in the record, certifies that 'the above and foregoing is a true, correct and complete transcript of all the evidence taken in said cause' by the official reporter 'and includes all the objections stated, rulings of the court thereon and all the evidence given in said cause.' Said certificate bears the seal of the court and is signed by the judge under date of December 2, 1953.

Rule 2-3 provides that 'Every bill of exceptions tendered * * * shall, if correct, be signed by the judge and filed with the clerk, which filing may be evidenced by * * * the clerk's certificate.' The judge's certificate is a part of the bill of exceptions. The bill of exceptions (designated as 'Transcript of evidence') bears the clerk's stamp, 'Filed in Superior Court, Madison County, Jan. 11, 1954--Joseph H. Armington, Clerk.' Thus it appears that the judge signed and certified to the transcript of the evidence on December 2,1953, and that it was filed with the clerk on January 11, 1954, as evidenced by the clerk's certificate and file stamp. That the bill was filed with the clerk is sufficiently shown. Walner v. Capron, 1946, 224 Ind. 267, 274, 66 N.E.2d 64. The fact that the trial judge signed the bill of exceptions implies that it was tendered to him for settlement and his settlement is evidenced by his certificate that it is a 'true, correct and complete' transcript of 'all the evidence' given in the cause.

Although the instrument containing the evidence is entitled 'Transcript of evidence' and is so referred to in the judge's certificate, it purports to be a bill of exceptions and is referred to as such in the clerk's certificate. Such title and reference cannot change the character of the instrument. Oster v. Broe, 1903, 161 Ind. 113, 122, 64 N.E. 918. See, also, Keeshin Motor Express Co. v. Glassman, 1942, 219 Ind. 538, 543, 38 N.E.2d 847, where the judge's signature was held to make a reporter's transcript a bill of exceptions.

Such exhibits as are material to a consideration on this appeal are copied in the bill of exceptions containing the evidence. Therefore, the placement of the originals in the transcript is not fatal.

It is patent on the face of the record that the verdict of the jury, as rendered, is contrary to law, and, consequently, the judgment appealed from must be reversed. The first and third paragraphs of the complaint proceed upon alleged causes of action for injury to the person, and the second paragraph counts upon trespass and damage to personal property. All of the appellants are named as joint defendants to the action.

At the conclusion of all the evidence, the appellee, with approval of the court, filed...