King v. King

• Court: Indiana Appellate Court
• Citation: King v. King, 119 Ind.App. 46, 82 N.E.2d 527 (Ind. App. 1948)
• Decision Date: 07 December 1948
• Docket Number: 17778.
• Parties: KING v. KING et al.

82 N.E.2d 527

119 Ind.App. 46

KING v. KING et al.

No. 17778.

Appellate Court of Indiana, in Banc.

December 7, 1948

Appeal from Hancock Circuit Court; John B. Hinchman, Judge.

C. James McLemore, of Indianapolis, Richard Lineback and Arthur Van Duyn, both of Greenfield, and Symmes, Flemming & Symmes, of Indianapolis, for appellant.

James A. Ross and Ross, McCord, Ice & Miller, all of Indianapolis, Herbert C. Jones and George R. Tolen, both of Shelbyville, and James P. Walker, of Greenfield, for appellees.

HAMILTON Judge.

On March 17, 1947, the Hancock Circuit Court granted a divorce to the appellee Kenneth King from his then wife Dorothy King the appellant herein. The court's decree makes disposition of a considerable amount of property, belonging to the parties during marriage, in which the appellees Earl Strickler and the Farmers National Bank of Shelbyville were alleged to have some interest. The record discloses no controversy between the appellant and these appellees and, as they have filed no briefs, we assume that they are nominal parties to this appeal and therefore it will be understood that our use of the word 'appellee' refers to Kenneth King only.

Feeling aggrieved by the decree the appellant filed what she designated a motion for a new trial in which she enumerates 12 specific grounds for relief. These specifications may be classified as follows: (1) the decision of the court is not sustained by sufficient evidence and is contrary to law; (2) the court erred in the admission and exclusion of various items of evidence; (3) the amount of the appellant's recovery is too small; and (4) that after the trial and before the decision of the court was announced, the reporter who took shorthand notes of the evidence died and no one has been found, after diligent effort, who can read said notes and therefore the appellant will be unable to procure a proper and accurate bill of exceptions containing the evidence for use on appeal. This so-called motion for a new trial was overruled and such ruling is assigned as error.

The appellant's brief fails to state any proposition, point or authority in support of those specifications in her application for a new trial which we have classified above as (1), (2) and (3) and therefore we treat the same as waived. This leaves nothing for our consideration except the matter involving the court reporter's death and the alleged inability of the appellant to procure an accurate bill of exceptions containing the evidence for use on appeal. The appellee insists that such circumstances are not grounds upon which a motion for a new trial can be based and therefore nothing remains in the record for us to decide. It is true that our statute, specifying the grounds upon which new trials may be granted, § 2-2401, Burns' 1946 Replacement, provides no such relief, but it is settled law in Indiana that inherent jurisdiction reposes in trial courts to grant new trials beyond the statute and that a bill in equity will lie for that purpose when justice can be done in no other way. Indianapolis Life Ins. Co. v. Lundquist, 1943, 222 Ind. 359, 53 N.E.2d 338, 343. Typical cases justifying equitable relief are those in which the sufficiency of the evidence to sustain the decision, or errors in the admission and exclusion of evidence, will be involved on appeal and, because of circumstances beyond the control of the party seeking relief, it is impossible to procure a bill of exceptions containing the evidence and consequently there is no way of making the evidence a part of the record. The right of appeal, based on any question depending upon the evidence for solution, is thus destroyed and a new trial affords the only adequate relief. See case notes in 13 A.L.R. 102; 16 A.L.R. 1158 and 107 A.L.R. 603.

This principle was announced by the Supreme Court in Indianapolis Life Ins. Co. v. Lundquist, supra, in the following language: 'Official court reporters are an arm of the court, charged with the duty of preserving a record of the evidence, and transcribing and certifying the record for use as a bill of exceptions, and it has long been the practice to rely upon the availability of such a record. Where the sufficiency of the evidence is in question, this record is as important as the record kept and certified by the clerk. A failure to make this record available is a failure of the court which entitles the appellant to equitable relief.'

The appellee contends, however, that the appellant does not seek relief through an independent bill in equity but on the contrary sought to avail herself of a statutory motion for a new trial through which medium she has no remedy for the grievances of which she complains. It is true that the appellant filed the pleading in controversy in the cause in which the objectionable judgment was rendered; that it contains several of the statutory grounds for a new trial and on the face of the record it does not appear to be an original action. This court was confronted with a somewhat similar situation in the...