Louisville & N. R. Co. v. Paul's Adm'r

• Decision Date: 23 June 1950
• Citation: 235 S.W.2d 787,314 Ky. 473
• Parties: LOUISVILLE & N. R. CO. v. PAUL'S ADM'R (two cases). LOUISVILLE & N. R. CO. v. PAUL'S GUARDIAN.
• Court: United States State Supreme Court — District of Kentucky

Page 787

235 S.W.2d 787

314 Ky. 473

LOUISVILLE & N. R. CO. v. PAUL'S ADM'R (two cases).

LOUISVILLE & N. R. CO. v. PAUL'S GUARDIAN.

Court of Appeals of Kentucky.

June 23, 1950.

As Modified on Denial of Rehearing Dec. 8, 1950.

Further Petition for Rehearing Denied Jan. 19, 1951.

H. T. Lively, J. P. Hamilton, J. L. Lenihand, James P. Helm, Jr., all of Louisville, for appellant.

Henry L. Brooks, Louisville, for appellee.

LATIMER, Justice.

The appeal is from judgments in favor of the Administrator of the estates of George W. Paul for $20,000 and of his young son, George Robert Paul, for $2,000 for their respective deaths, and in favor of the guardian of William Edward Paul, another son, for $3,000 for personsl injuries, all of which were suffered when a truck in which they were riding was struck by a train on a public crossing near Coral Ridge, about ten miles south of Louisville. The cases were tried together as one.

We first heard of the case in a petition in this Court for a writ prohibiting the trial judge from certifying and approving, or rather recertifying and again approving, a bill of exceptions. It is charged in that petition that the original certification and order filing the bill are void because there was no such document in existence at the time, the official stenographer and the court having merely signed the certificate and order filing the same in anticipation of the record being made; that the court had overruled the plaintiff's motion to cancel and vacate the order and purposed to execute a recertification and make another order filing the bill after the time allowed for doing so had expired. The petition sought to prohibit that future action. A temporary writ issued. While that case in this Court was being developed, the record for the appeal with the bill of exceptions bearing the original certificate was filed. The appellees have filed (1) a motion to strike the bill because the court was without jurisdiction to file it since it was not tendered within the time allowed by the Code and previous orders of the court, and (2) another motion to consolidate the cases, the obvious purpose being to have this Court consider the evidence taken in the prohibition case in support of the motion to strike the bill of exceptions. The appellant objects to both motions. If that evidence be not considered, then the motion to strike must be overruled, for on its face the record is regular in respect of the existence of the transcript at the time and the timely certification, approval and filing. The presumption of regularity must prevail. Avery v. Davenport, 300 Ky. 865, 190 S.W.2d 663. Verity is imported to such a degree that the certification can be questioned only for fraud or mistake. However, in its finality it would be a most ridiculous position to presume regularity here when we know, through the procedure before us to obtain the writ of prohibition, that the bill of exceptions was not in existence at the time of the approval and filing of the certification, a fact which is not and cannot be denied.

We have no specific rule with reference to consolidating cases or hearing them together, but it is often done. Rule 1.230 deals with records or prior appeals or other records already filed in this Court when made part of the record in another cause in the circuit court but not copied into the transcript of that other case. Paducah and Illinois R. Co. v. Albritton, 174 Ky. 270, 191 S.W. 879. But we take it to be an inherent power to consider together pending cases which have grown out of the same cause and are between the same parties where the ends of justice in the administration of the law demand it. It was written long ago in National Bank of Monticello v. Bryant, 13 Bush 419, 76 Ky. 419:

'This and every other court will take judicial notice of its own records as far as they pertain to the case in hand, but will not take notice in deciding one case of what may be contained in the record of another and distinct case, unless it be brought to the attention of the court by being made a part of the record of the case under consideration.'

See also Maynard v. Allen, 276 Ky. 485, 124 S.W.2d 765. It is true, the prohibition case is against the trial judge, who filed no response whatsoever. But, it will be noted that this appellant intervened as the real party in interest and became the sole respondent. To decline to consider that record in connection with the motion to strike the bill of exceptions would be to let an extreme technicality of practice prevail over the practical, and but cause the parties to retake the evidence, for we would be impelled to authorize that it be done in support of the motion to strike the bill of exceptions. The reception of evidence aliunde in support of such a motion where the official certification of a circuit clerk is challenged upon the ground of fraud of the party benefited or mistake on the part of the officer, KRS 61.060, has been recognized. Bingham v. Anderson, 199 Ky. 680, 251 S.W. 973. That is the real basis of the motion to strike the bill, though there is no suggestion of fraud or wrong doing on the part of the defendant in the case. It is only a technical fraud. The contention is, in reality, that through the failure of the official stenographer, who it is argued was the agent for the attorney for the defendant in this transaction, and the trial court to follow the procedural law as laid down in the Civil Code of Practice, the court was led into the mistake of attaching a certificate of approval and entering an order filing a nonexistent bill of exceptions. We are of the opinion, therefore, that it is right and proper that we hear or consider the cases together and accept the record of what transpired in considering the motion to strike the bill of exceptions.

The facts are not in dispute. By an order of extension the Railroad Company was given 120 days in which to prepare its bill of exceptions. It is claimed that the official reporter had a great deal to do in the intervening period, during which the court was in summer vacation. The record shows, however, that the reporter left the latter part of June for his summer home in Michigan and did not return until the middle of September. Attorney for defendant below insists that he was diligent and very persistent in his effort to see that the record was prepared, and that the reporter continued to assure him the record would be filed in due time, which in fact is an acknowledgement that he knew it was his responsibility to see that bill of exceptions was filed in time. The reporter had transcribed a portion of the record, when he learned that the time for filing was nearly up, which would be on September 29th. He then prepared his certificate of accuracy and completeness of the record and another reciting the approval of the judge and a draft of the order filing it. The reporter signed his certificate and presented the paper to Judge Field, telling him what it was and asking him to sign it. Without comment, the Judge, who is blind and has been for several years, though continuing his long and eminent service on the bench, signed it. At that time the certificates were not attached to the incomplete transcript and it was not presented to the court. A deputy clerk of the court stamped the paper as filed. It is as follows:

'Came the defendant, by counsel and tendered to the Court its Bill of Exceptions, and Transcript of Testimony and Carbon Copy thereof, and moved the Court for an order filing same.

'The Court having duly examined, certified and approved same, and the Hon. Wm. H. Field, Judge of this Branch and Division having signed said Bill of Exceptions Transcript of Testimony and Carbon Copy thereof, it is now ordered by the Court that same be and is hereby ordered filed and made a part of the record this action without being spread at large on the order book of this Court.'

This was entered three days before the expiration of the time for filing the document. The court signed the order book the next day. None of the attorneys in the case was present or had any knowledge of any of these things.

An entry was made in regular course on the rule docket showing that the bill of exceptions had been 'signed and certified and filed as of September 26, 1949.' The attorney for the defendant claims that he relied upon this official record and its verity, and but for that order, he would have, as he testified, protected his client and himself by preparing a bystanders bill and tendering it in time. Section 337, Civil Code of Practice; Helm v. Hoke Co., 173 Ky. 525, 191 S.W. 269. As a matter of fact, it was not until after this Court had issued the temporary writ of prohibition above mentioned, which was on October 24th, that the reporter completed the transcript and bill of exceptions. On Novemer 3rd he affixed the two pages containing his own and the Judge's certification and approval previously signed, placed the whole within the manuscript covers which had been previously stamped as having been filed in open court on September 26th. Meanwhile, on October 21st, the plaintiffs had moved the court to vacate the order of September 26th on the grounds appearing herein, and that was overruled. This is alleged and admitted in the writ of prohibition case but the record in the case on appeal contains no reference to such action and there is no such motion or order in either record. The plaintiffs immediately resorted to this Court for the writ of prohibition. The record for the appeal was filed in this Court on November 15th.

The reporter testified he was not positive but was of the impression that he did not disclose to the Judge that the record was not complete or that he was signing a paper not attached to it. Judge Field testified that he didn't think he knew that fact, but added, 'I will say that I don't think that would have made much difference had I known it. I don't recall that I did know it was just...