Johnson v. Gehbauer

• Decision Date: 10 October 1902
• Citation: 64 N.E. 855,159 Ind. 271
• Parties: JOHNSON v. GEHBAUER.
• Court: Indiana Supreme Court

159 Ind. 271

64 N.E. 855

JOHNSON

v.GEHBAUER.

Supreme Court of Indiana.

Oct. 10, 1902.

Appeal from circuit court, Hamilton county; John F. Neal, Judge.

Action by John Gehbauer against Jesse B. Johnson. From a judgment in favor of plaintiff, defendant Jesse B. Johnson appeals. Transferred from appellate court under Act March 12, 1901, § 8. Affirmed.Miller, Elam & Fesler, for appellant, Christian & Christian, W. S. Doan, and W. J. Beckett, for appellee.

DOWLING, C. J.

On May 11, 1900, John Gehbauer, who was the plaintiff below, recovered a judgment against the appellant, Johnson, for damages for a personal injury. After motions for judgment on the answers to interrogatories and for a new trial had been overruled, 90 days from May 11, 1900, were granted the defendant in which to prepare and file his bill of exceptions. Conformably to the provisions of the act of March 3, 1899 (Acts 1899, p. 384), a bill was filed by the stenographer who reported the evidence, and after such filing the bill was signed by the judge before whom the cause was tried. An appeal was taken by the defendant below, and a transcript containing the bill of exceptions so filed and signed was lodged in the appellate court. Afterwards, this court having decided in Adams v. State, 156 Ind. 596, 599, 59 N. E. 24, that section 6 of the act of March 3, 1899, was unconstitutional, the appellant, on April 13, 1901, over the objection of the appellee, obtained an order of the Hamilton circuit court, where the cause had been tried, extending the time for filing the bill of exceptions in said cause until May 1, 1901. In pursuance of this order, a second bill was prepared, and, after it was signed by the judge, it was filed in the office of the clerk of the Hamilton circuit court April 25, 1901. By the direction of the appellant the bill originally filed and incorporated in the transcript on this appeal was detached and removed from the records of this court, to which the cause had been transferred, without its leave, and the bill filed April 25, 1901, was substituted. The proceedings of the Hamilton circuit court upon the petition of the defendant below, under the act of 1901, for an extension of time to file the substituted bill of exceptions, are made a part of the record in this court. In making the order of April 13, 1901, the Hamilton circuit court acted upon the authority of an act of the general assembly of this state approved March 11, 1901 (Acts 1901, p. 511), giving to trial courts in certain cases the power to extend the time for filing bills of exceptions. The appellee moves to strike the transcript from the files, and to dismiss this appeal, because of the unauthorized alteration of the record by the removal of the original bill of exceptions and the substitution of the bill of April 25, 1901.

The action of the appellant, in procuring from the trial court an order extending the time for filing a bill of exceptions, and in causing such new bill to be attached to the transcript, some eight months after the transcript had been filed in the appellate court, was taken in pursuance of said act of 1901, supra. That act provided that, where an attempt had been made to make the evidence a part of the record by a bill of exceptions, prepared in pursuance of the act of 1899, supra, which had been held unconstitutional, the court or judge before which the case was determined might, upon proper application by the party desiring to appeal, by order, extend the time for tendering the bill of exceptions for a sufficient length of time to enable such party to prepare and tender such bill, which, upon being signed and filed, should become a part of the record to the same extent and in the same manner as if tendered and filed within the time originally fixed. The act further provided for the withdrawal from the transcript previously filed in the supreme or appellate court, in any case then pending on appeal, of the longhand manuscript of the reporter, its delivery to the party prosecuting the appeal for the signature of the judge, its proper authentication, and its incorporation in the transcript as a part of the record. Counsel for appellee contend that the act of 1901, supra, is unconstitutional and void. On the other hand, it is insisted on behalf of the appellant that the act is remedial and beneficent in its scope and purpose, and that it conflicts with no provision of the organic law of the state. The records of a court are subject to its own control, and when jurisdiction has attached they may not be diminished or altered without the consent of the court in which the cause is pending, excepting only where such change is directed by some superior or appellate court, authorized by law to make such order. This freedom from interference or control by other departments of the government is essential to the independence of the judicial branch thereof. The legislature has no more authority to alter the records of a court than has a court to change the journal of legislative proceedings. Such exclusive control over its records is an important function of the judicial authority, and it cannot be exercised either by the legislative or the executive department of the state. Const. art. 3, § 1. Where a transcript is filed in the proper court upon appeal, and when notice is given to the appellee, if necessary, the jurisdiction of the court to which the appeal is taken is complete, and the transcript becomes a record of that court. Such record cannot be removed, altered, or amended without the leave of the court in which the appeal is pending, and any addition to or diminution of the record without the leave of the court is a mere mutilation or interpolation, having no legal efficacy, and affording no foundation for relief or redress to the party perpetrating it. Great as is the power of the legislature, it does not enable that department of the government to come into the courts after their records are made up, and alter, add to, or destroy them. On this ground alone, which we regard as amply sufficient, the act in question might be held unconstitutional.

But for another and equally cogent reason we are constrained to decide against the validity of this act. It is clearly in conflict with that provision of the state constitution which prohibits the passage of any law impairing the obligation of contracts. Const. art. 1, § 24. A judgment is a contract of record, and its obligation is impaired whenever the observance of those forms and rules of procedure in force when it was obtained, and by which it is protected and sustained, are annulled or set aside. In the present case the rights of the parties under the judgment were fixed by the law as it stood when the final adjournment of the Hamilton circuit court took place. The right to require that the bill of exceptions should be settled by the judge, signed by him, and filed in the office of the clerk of the court, after such signing, within the term, or within such time beyond the term as the court, before the expiration of the term, should appoint, to make it sufficient and effective to bring the evidence into the record, was a valuable vested right of the plaintiff below. His rights in this behalf, as well as the measure of those of the defendant, were established by the order of the court requiring the bill to be tendered and filed within 90 days from May 11, 1900. This right having vested, it could not be impaired or destroyed by a further order, made after the term at which the judgment was rendered. If the party appealing failed to tender his bill within 90 days after May 11, 1900, his right to tender such bill was irrevocably lost, and neither the trial court nor the legislature could restore it by depriving the other party of the legal consequences of such failure. Mr. Justice Gray, in Bank v. Eldred, 143 U. S. 293, 298, 12 Sup. Ct. 452, 36 L. Ed. 162, states the law thus: “By the uniform course of decision, no exceptions to rulings at a trial can be considered by this court, unless they were taken at the trial, and were also embodied in a formal bill of exceptions presented to the judge at the same term, or within a further time allowed by order entered at that term, or by standing rule of court, or by consent of parties; and, save under very extraordinary circumstances, they must be allowed by the judge and filed with the clerk during the same term. After the term has expired, without the court's control over the case being reserved by standing rule or special order, and especially after a writ of error has been entered in this court, all authority of the court below to allow a bill of exceptions then first presented, or to alter or amend the bill of exceptions already allowed and filed, is at an end. U. S. v. Breitling, 20 How. 252, 15 L. Ed. 900;Muller v. Ehlers, 91 U. S. 249, 23 L. Ed. 319; Jones v. Machine Co., 131 U. S. Append. cl; Hunnicutt v. Peyton, 102 U. S. 333, 26 L. Ed. 113;Davis v. Patrick, 122 U. S. 138, 7 Sup. Ct. 1102, 30 L. Ed. 1090;In re Chateaugay Ore & Iron Co., 128 U. S. 544, 9 Sup. Ct. 150, 32 L. Ed. 508. The duty of seasonably drawing up and tendering a bill of exceptions stating distinctly the rulings complained of and the exceptions taken to them belongs to the excepting party, and not to the court. The trial court has only to consider whether the bill tendered by the party is in due time, in legal form, and conformable to the truth; and the duty of the court of error is limited to determining the validity of exceptions duly tendered and allowed. Hanna v. Maas, 122 U. S. 24, 7 Sup. Ct. 1055, 30 L. Ed. 1117. Any fault or omission in framing or tendering a bill of exceptions, being the act of the party, and not of the court, cannot be amended at a subsequent term, as a misprision of the clerk in recording inaccurately or omitting to record an order of the court might be. In re Wight, 134 U. S. 136, 10 Sup. Ct. 487, 33 L. Ed. 865. The writ of certiorari prayed...