McCoy v. Able

• Citation: 30 N.E. 528,131 Ind. 417
• Decision Date: 09 March 1892
• Docket Number: 15,118
• Parties: McCoy v. Able et al
• Court: Supreme Court of Indiana

30 N.E. 528

131 Ind. 417

McCoy v. Able et al

No. 15,118

Supreme Court of Indiana

March 9, 1892

Reported at: 131 Ind. 417 at 425.

From the Blackford Circuit Court.

Judgment reversed.

D. T Taylor and R. H. Hartford, for appellant.

J. W Headington, J. F. La Follette, W. H. Williamson, C. E. Walters and W. A. Thompson, for appellees.

OPINION

Elliott, C. J.

In March, 1886, a petition for the construction of a free gravel road was presented to the board of commissioners of Jay county. The board ordered the construction of the road, and awarded the contract for its construction to the appellant. He constructed the road, and the board accepted it. During the progress of the work partial estimates were issued to him, and upon its completion the engineer issued to him a final estimate. The contract assumes to provide, and does in terms provide, that the estimates of the engineer shall be conclusive. After the completion and acceptance of the work, the contractor presented his claim to the board for the sum due him as evidenced by the estimate issued to him by the engineer. The board allowed the claim. The case went by appeal to the circuit court, and, finally, by change of venue, went to the Blackford Circuit Court. That court sustained the appellees, thus vacating the allowance made by the board of commissioners upon the estimate of the engineer.

The appellant unsuccessfully moved to dismiss the appeal. There is no bill of exceptions containing the motion or exhibiting the ruling thereon, and we can not regard the question as before us for review. Crumley v. Hickman, 92 Ind. 388; Yost v. Conroy, 92 Ind. 464, and cases cited; Board, etc., v. Montgomery, 109 Ind. 69, 9 N.E. 590.

In deciding, as we do, that there is no question presented because the motion to dismiss is not in the record, we are not unmindful of the fundamental doctrine that the objection that there is no jurisdiction of the subject-matter may be interposed at any time. We affirm that doctrine, and declare that such an objection needs for its exhibition neither formal motion nor bill. But we deny that the doctrine has any application to this case. There was here jurisdiction of the general subject, that is, of the general class of cases to which the particular case belongs, and where such jurisdiction exists specific objections to the jurisdiction must be opportunely made and duly brought into the record. "By jurisdiction of the subject-matter," said the court in Chicago, etc., R. R. Co. v. Sutton, 130 Ind. 405, 30 N.E. 291, "is meant jurisdiction of the class of cases to which the particular case belongs." Jackson v. Smith, 120 Ind. 520, 22 N.E. 431 (522); State, ex rel., v. Wolever, 127 Ind. 306, 26 N.E. 762 (315); Alexander v. Gill, 130 Ind. 485, 30 N.E. 525; Yates v. Lansing, 5 Johns. 282.

The decision in Wilson v. Wheeler, 125 Ind. 173, 25 N.E. 190, is not in point. In that case the motion to dismiss was sustained, and as the presumption is in favor of the trial court, it was rightly declared that the inference should be that the proper bond and affidavit were not filed. In Robinson v. Board, etc., 37 Ind. 333, and Alexander v. McCordsville, etc., Co., 44 Ind. 436, bills of exceptions were filed.

It is not shown by the record that there was any error or any abuse of discretion in permitting the appellees to file an answer in the circuit court. We must, therefore, presume that there was no error in the action of the court.

The appellees strenuously contend that the evidence is not in the record. One of the reasons adduced in support of this contention is that the bill was not filed within the time fixed by the order of the court. The cases cited by counsel decided under the statute in force prior to the revision of 1881, are uninfluential. As the law now stands the time of the filing is not of controlling importance, for the presentation of the bill to the judge, if shown in the body of the instrument, controls the question. It is still true that the bill must be filed. Hormann v. Hartmetz, 128 Ind. 353, 27 N.E. 731. But the time is not always of controlling importance, inasmuch as the presentation of the bill to the judge is the act which gives effect to the bill when it is signed and filed. Vincennes, etc., Co. v. White, 124 Ind. 376, 24 N.E. 747; Robinson v. Anderson, 106 Ind. 152, 6 N.E. 12; Ohio, etc., R. W. Co. v. Cosby, 107 Ind. 32, 7 N.E. 373; Terre Haute, etc., R. R. Co. v. Bissell, 108 Ind. 113, 9 N.E. 144. The decision in La Rose v. Logansport, etc., Bank, 102 Ind. 332, 1 N.E. 805, was in some respects erroneous, as shown and adjudged in Robinson v. Anderson, supra, and Terre Haute, etc., R. R. Co. v. Bissell, supra. As the bill before us shows, on its face, that it was presented to the judge in due time, the fact that it was not filed until some time afterwards does not impair its force.

It is contended that, as the record does not show that the stenographer was appointed or sworn, the evidence is not in the record. This position is untenable. The settlement and granting of a bill of exceptions is a judicial duty. Seymour, etc., Co. v. Brodhecker, 130 Ind. 389, 28 N.E. 185, and authorities cited. As the duty is judicial it can not be delegated. It is, indeed, probably true that even the Legislature can not impose that duty upon any person other than a judicial officer. But the mere clerical work of taking down the evidence and writing it out may be done by counsel, by a stenographer, or by any one else. If the judge who tries the case sanctions and accepts the statement of the evidence, he thereby adopts it as his own judicial act, and as such it comes to this court. Bradway v. Waddell, 95 Ind. 170; Stagg v. Compton, 81 Ind. 171; McCormick, etc., Co. v. Gray, 114 Ind. 340, 16 N.E. 787; L'Hommedieu v. Cincinnati, etc., Co., 120 Ind. 435, 22 N.E. 125 (436).

It is settled beyond controversy that the stenographer's report can not be made part of the bill of exceptions in any other mode than by incorporation. Patterson v. Churchman, 122 Ind. 379, 22 N.E. 662, and cases cited; Clark v. State, ex rel., 125 Ind. 1, 24 N.E. 744; Fiscus v. Turner, 125 Ind. 46, 24 N.E. 662; Dick v. Mullins, 128 Ind. 365, 27 N.E. 741, and cases cited; Morningstar v. Musser, 129 Ind. 470, 28 N.E. 1119. But when it is incorporated in the bill of exceptions in the mode pointed out in Wagoner v. Wilson, 108 Ind. 210, 8 N.E. 925, it is there by the act of the judge, and will be considered as fully and effectively in the record.

In this instance the long-hand manuscript of the reporter is preceded by the proper and usual recitals of a bill of exceptions, and the usual formula: "And this was all the evidence given in the cause," is written in the bill, as are, also, the date of the presentation to the judge and the appropriate conclusion. To the bill thus prepared is affixed the signature of the judge. The course adopted was a proper one, and the evidence as taken down and transcribed by the reporter is in the bill of exceptions.

A further contention of the appellees' counsel is that the clerk can not certify to us the original bill of exceptions containing the reporter's long-hand manuscript. We are referred to the case of Hull v. Louth, 109 Ind. 315, 10 N.E. 270, where it was said that the long-hand manuscript may be taken from the bill of exceptions and certified up, without copying, by the clerk. In our judgment the practice adopted in this case is preferable to that suggested in Hull v. Louth, supra. We adjudge the better rule to be this: Where a bill of exceptions upon a ruling denying a new trial is taken for the purpose of getting the stenographer's report of the evidence, with its incidents, into the record, the original bill may be certified up to this court as part of the record. All there is of such a bill, besides the report of the evidence, is composed of formal parts and brief recitals, so that little would be left to be copied if the report of the evidence were taken out. Confusion is avoided by sending up the bill without detaching the evidence, and only a very little matter outside of the report of the evidence comes up in its original condition. It is much more consistent with principle, and much safer to require the entire original bill to be certified, than it is to devolve upon the clerk the duty of determining what shall be left in and what taken out. The rule we here declare enables parties to get the long-hand manuscript into the record without incurring the useless expense of having it copied, prevents confusion in the record and gives fair and reasonable effect to the statute concerning official short-hand reporters. But the rule we declare does not have, and can not be made to have, any application to any other bills of exceptions except such as are prepared for the purpose of bringing into the record the long-hand manuscript of the official reporter and its necessary incidents. All other bills of exceptions must be copied by the clerk. Nor can the rule apply to a bill of exceptions wherein other matters than the long-hand report and matters legitimately connected therewith are sought to be brought into the record. In order to come within the rule stated, the bill of exceptions must be confined to the single office of exhibiting the report of the evidence and the matters directly and properly pertaining thereto.

The first question presented by the specification of error founded upon the ruling denying a new trial is as to the effect of the estimates of the engineer and the acceptance of the board of commissioners. We can not agree with counsel that the engineer's estimate is conclusive, for we understand it to be settled by our decisions that parties can...