Mankin v. Pennsylvania Co.

• Citation: 67 N.E. 229, 160 Ind. 447
• Case Date: April 23, 1903
• Court: Supreme Court of Indiana

160 Ind. 447
67 N.E. 229

MANKIN
v.
PENNSYLVANIA CO.

Supreme Court of Indiana.

April 23, 1903.

Appeal from Circuit Court, Porter County; H. B. Tuthill, Judge.

Action by Jesse Mankin against the Pennsylvania Company. Judgment for defendant, and plaintiff appeals. Transferred from the Appellate Court under section 1337u, Burns' Rev. St. 1901; Acts 1901, p. 590. Affirmed.

[67 N.E. 230]

Peter Crumpacker, for appellant. Zollars, Worden & Zollars, for appellee.

MONKS, J.

Appellant brought this action in the Lake superior court to recover damages for personal injuries to himself, alleged to have been caused by appellee's passenger train colliding with him on April 27, 1898. Before appellee filed any pleadings, the venue of said cause was changed to the Porter superior court, where appellant filed an amended complaint. Appellee filed an answer in two paragraphs, to the second paragraph of which appellant filed a reply. The cause was tried by a jury, and a general verdict returned in favor of appellee. Answers to interrogatories submitted by the court at the request of the parties were returned with the general verdict. Over appellant's motion for a new trial, judgment was rendered in favor of appellee upon the general verdict.

Appellant has assigned two errors: (1) “That the Porter superior court erred in proceeding in said cause, for it had no jurisdiction;” (2) the court erred in overruling appellant's motion for a new trial.

At the time the change of venue was taken, the statute provided that the cause should be sent to the circuit court of the adjoining county. After the papers and transcript in said cause had been filed in the office of the clerk of the Porter superior court, and said cause docketed therein, appellant appeared in open court and filed an amended complaint, and afterwards filed a reply to appellee's answer to said complaint. Afterwards the cause was tried by a jury, and a verdict returned. Appellant filed a motion for a new trial, which was overruled, and final judgment was rendered against him. Appellant did not raise any question in the court below as to the jurisdiction of said court. The Porter superior court had general jurisdiction over the class of cases to which the one before us belongs. After appellant appeared in that court, without objection to the jurisdiction thereof, and took the steps above mentioned, as the record shows, it was too late for him to question its jurisdiction of this cause. Appellant was plaintiff, and was demanding in that court, which had general jurisdiction over the subject-matter, a judgment against appellee. He cannot now claim that said court had no authority to act. Cox v. Pruitt, 25 Ind. 90, 93, 94;Garner's Adm'r v. Board, 27 Ind. 323, 324;Tholke v. State, 50 Ind. 355, 356;Street v. Chapman, 29 Ind. 142, 151, 152;Center Township v. Board, etc., 110 Ind. 579, 582, 583, 10 N. E. 291.

Appellee insists that the part of the record which purports to be a bill of exceptions containing the evidence, proceedings on appellant's challenge to the array, and the instructions, is not in the record, and that for this reason no question presented by the motion for a new trial can be determined. What purports to be a bill of exceptions commences on page 70, and ends on page 522, of the transcript. The jury returned a verdict on May 27, 1899, the last day of the May term of said court, and appellant filed his motion for a new trial on the first day of the next term of said court. Said motion was overruled by the court on May 27, 1900, and 90 days given appellant in which to file a bill of exceptions. The evidence was taken down by an “official reporter,” and the longhand manuscript of the evidence was filed in the clerk's office before it was incorporated in the bill of exceptions. After the same was incorporated in the bill of exceptions, said bill, on January 9, 1901, was signed by the judge, and filed in the clerk's office on January 10, 1901. It appears from the record that the clerk has taken pages 70 to 485, inclusive, of the original bill of exceptions, and embraced the same in the transcript, and immediately thereafter has copied into the transcript the remainder of the bill of exceptions, being pages 486 to 522, inclusive. In other words, said original bill of exceptions has been taken or torn apart, and that part thereof containing the evidence and the beginning of the bill has, without copying, been embraced in the transcript as pages 70 to 485, inclusive, and the remainder of said original bill, containing the proceedings on appellant's challenge to the array, and the instructions, and the judge's certificate to the bill, has been copied into the transcript as pages 486 to 522, inclusive.

Appellant insists that the bill of exceptions is properly in the record in this court under the act of 1873, Acts 1873, p. 194, c. 83, and...