Kelso v. Kelso

• Decision Date: 27 January 1897
• Docket Number: 1,888
• Citation: 45 N.E. 1065,16 Ind.App. 615
• Parties: KELSO v. KELSO ET AL
• Court: Indiana Appellate Court

45 N.E. 1065

16 Ind.App. 615

KELSO v. KELSO ET AL

No. 1,888

Court of Appeals of Indiana

January 27, 1897

16 Ind.App. 615. At 628.

Original Opinion of October 16, 1896, Reported at: 16 Ind.App. 615.

Petition for hearing overruled.

OPINION

On PETITION FOR REHEARING.

WILEY J.

Appellant has filed a petition for rehearing in which he earnestly contends that the court in its original opinion "overlooked the plain and unmistakable record," in holding that the bill of exceptions was not properly in the record, and could not be considered. In view of the earnest appeal of the appellant in his brief in support of his petition for a rehearing, we have examined the record with much care. The record shows that appellant's motion for a new trial was overruled June 26th, 1893, "to which decision of the court the defendant at the time excepts, and ninety days' time is given in which to prepare and file his bill of exceptions." We have quoted the exact language of the record, from which it appears that the time for filing the bill of exceptions expired ninety days from June 26th, which would be September 23, 1893. Section 1476 Burns' R. S. 1894 (1410 Horner's R. S. 1896), provides: "Whenever, in any cause, such verbatim report shall have been made by an official reporter, the original longhand manuscript of the evidence, by him made, may be filed with the clerk of the court by the party entitled to the use of the same; and in case of an appeal to the Supreme Court, * * * * * it shall be the duty of the clerk, if requested to do so by said party, to certify the said original manuscript of evidence, when the same shall have been incorporated in a bill of exceptions, to the Supreme Court or other court of appeal, instead of a transcript thereof; and the said original manuscript of evidence may be used in the Supreme Court or other court of appeals in the same manner and for all purposes in and for which a certified transcript thereof might heretofore be used." Under the provisions of the statute just quoted, and the repeated decisions of the Supreme and this court, it is the settled law in this State, that the original longhand manuscript of the evidence must be filed in the clerk's office before it is incorporated in a bill of exceptions, and the record must affirmatively show such filing. DeHart v. Board, etc., 143 Ind. 363; Joseph v. Wild, 146 Ind. 249, 45 N.E. 467; Carlson v. State, 145 Ind. 650, 44 N.E. 660; Rogers v. Eich, 146 Ind. 235, 45 N.E. 93; Smith v. State. 145 Ind. 176, 42 N.E. 1019; Beatty v. Miller, 146 Ind. 231, 44 N.E. 8; Marvin v. Sager, 145 Ind. 261, 44 N.E. 310; Holt v. Rockhill, 143 Ind. 530, 40 N.E. 1090.

The only evidence in the record that the original longhand manuscript was ever filed in the clerk's office is the certificate of the clerk that "the annexed and subjoined longhand report of the evidence in said cause * * * * * was filed in my office, December 21st, 1893." It appears therefore on the face of the record that the "longhand report of the evidence" was not filed in the clerk's office until nearly three months after the time fixed by the court for filing a bill of exceptions, and as...