Mankin v. Pennsylvania Co.

• Citation: 67 N.E. 229,160 Ind. 447
• Decision Date: 23 April 1903
• Docket Number: 19,856
• Parties: Mankin v. Pennsylvania Company
• Court: Supreme Court of Indiana

67 N.E. 229

160 Ind. 447

Mankin v. Pennsylvania Company

No. 19,856

Supreme Court of Indiana

April 23, 1903

From Porter Superior Court; H. B Tuthill, Judge.

Action by Jesse Mankin against the Pennsylvania Company. From a judgment in favor of defendant, plaintiff appeals. Transferred from Appellate Court, under § 1337u Burns 1901.

Affirmed.

Peter Crumpacker, for appellant.

Allen Zollars, C. H. Worden and F. E. Zollars, for appellee.

Monks J. Gillett, J., concurs in the result.

OPINION

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 can not now claim that said court had no authority to act. Cox v. Pruitt, 25 Ind. 90, 93, 94; Garner v. Board, 27 Ind. 323, 324; Tholke v. State, ex rel., 50 Ind. 355, 356; Street v. Chapman, 29 Ind. 142, 151, 152; Center Tp. 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 ninety 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), and that the evidence and other matter contained therein must be considered by this court. An examination of the decisions of this court will show that said bill of exceptions is not a part of the record under said act. It is clear, however, that said act of 1873 was repealed by § 1447 Burns 1901, § 8, Acts 1899, p. 384, which took effect March 3, 1899, several months before the trial of this cause. We need not, therefore, give said act of 1873 any further consideration.

Under the code of civil procedure no original paper, document, or entry in a cause can be incorporated in the transcript filed on appeal in this court, but all papers, documents, and entries must be copied into the transcript, and if any such original paper, document, or entry is incorporated in the transcript it will be disregarded. §§ 661, 662 Burns 1901, §§ 649, 650 R. S. 1881 and Horner 1901; Holt v. Rockhill, 143 Ind. 530, 532, 533, 40 N.E. 1090; Leach v. Mattix, 149 Ind. 146, 148, 48 N.E. 791, and cases cited. The only exception to this rule, since the repeal of said act of 1873 (Acts 1873, p. 194) is that created by § 638a Burns 1901 (Acts 1897, p. 244), under which an original bill containing the evidence may be embraced in the transcript, instead of copying it therein. All other laws on this subject have been either repealed or held unconstitutional. Smith v. State, 145 Ind. 176, 182, 183, 42 N.E. 1019; Beatty v. Miller, 146 Ind. 231, 44 N.E. 8; Adams v. State, 156 Ind. 596, 597-603. Nothing, however, but the evidence can be brought up by the original bill. If it contains instructions or other matters, they will be disregarded. Adams v. State, supra, and cases cited; Maynard v. Waidlich, 156 Ind. 562, 566, 60 N.E. 348.

Said original bill of exceptions is not embraced in the transcript as required by the act of 1897, supra, and is not, therefore, in the record under that act. Nor is the bill copied into the transcript as required by §§ 661, 662, supra, and the same is not, therefore, in the record under said sections.

As neither said act of 1897, supra, nor said §§ 661, 662, supra, have been complied with, said bill of exceptions can not be considered.

But if the court considered that part of the bill which is copied into the transcript, and which includes a copy of the judge's certificate showing when the same was presented to, and signed by him, it would not change the result. Said part of the bill shows that appellee filed in the office of the clerk of the Porter Superior Court a written demand for a struck jury to try said cause; that said clerk gave written notice, according to law, of said demand to appellant and appellee that the date fixed for the striking of said jury was May 11, 1899. The jury commissioners were also notified of said demand and date, and on May 8, 1899, said jury commissioners handed to the clerk the names of fifty persons from whom to strike said jury; that all of the persons named in said list were residents of Center township, in Porter county, and all but two were residents of the city of Valparaiso, in said township. On the day fixed to strike the jury said jury commissioners were not present, and said appellee was present by its attorneys, and, appellant not appearing at any time either in person or by attorney appellee, by its attorneys, and the clerk of said court proceeded to strike from a list of forty names taken by the clerk from such list of fifty names until the list was reduced to sixteen, whereupon the clerk issued process to the sheriff commanding...