Minnick v. State
| Decision Date | 28 March 1900 |
| Docket Number | 19,030 |
| Citation | 56 N.E. 851,154 Ind. 379 |
| Parties | Minnick v. The State, ex rel |
| Court | Indiana Supreme Court |
From the Henry Circuit Court.
Reversed.
M. E Forkner, for appellant.
W. A Brown, for appellee.
This is an action by information instituted by the State on the relation of its prosecuting attorney to oust appellant, an alleged usurper of the office of school trustee of the school town of Sulphur Springs, Henry county, Indiana.
A trial by the court resulted in a finding in favor of the State. The court thereupon rendered its judgment ousting said appellant from his said office, and directed that he turn over all books and papers thereof to one Burton O. Post; and judgment was rendered against appellant for cost. From this judgment he appeals, and the principal error assigned is the overruling of his motion for a new trial
At the very threshold we are confronted with the insistence of counsel for appellee that the evidence upon which this cause was tried is not in the record. The transcript discloses that the cause was tried at the September term, 1898, of the Henry Circuit Court; and after hearing the evidence, the court took the cause under advisement. On the 31st judicial day of the November term next following, the court announced its finding against appellant. On the 53rd judicial day of said November term being January 20, 1899, appellant filed his motion and reasons for a new trial; and on the same day filed his bill of exceptions embracing the evidence. This bill appears to have been signed by the trial judge on December 20, 1899, and it is ordered therein that it be made a part of the record in this cause. The motion for a new trial was taken under advisement by the court until the February term, 1899, which was the term next following that of the November term. The motion was overruled at the said February term and final judgment was then rendered.
Counsel for appellee insists that the evidence is not in the record for three reasons: (1) It does not affirmatively appear that the longhand manuscript of the evidence, taken by the shorthand reporter, was filed with the clerk of the court before it was embodied in a bill of exceptions; (2) that it does not appear that the bill of exceptions was filed after it was signed by the judge; (3) that the record does not affirmatively disclose that any time was granted by the court to appellant to file his said bill of exceptions.
In regard to the first contention, it is sufficient to say that the statute approved March 8, 1897 (Acts 1897, p. 244), which prescribes the manner in which the evidence in a cause may become a part of the record on appeal to this court, does not require that the evidence be first filed with the clerk of the trial court before it is incorporated into a bill of exceptions; and, hence, decisions of this court which were made in reference to the act of 1873 (Acts 1873, p. 194), to the effect that the record must affirmatively show that the longhand manuscript of the evidence was filed with the clerk before it was incorporated into a bill of exceptions, can have no application.
Under the law of 1897, the method employed to report the evidence given upon a trial is not essential. The report thereof may be made by the stenographic method, or the evidence may in the first instance be taken down in longhand and then embodied in the bill of exceptions; and such original bill, when filed as provided by the said act, may be certified to this court without being transcribed. Ewbank's Manual, § 35, and cases there cited.
The bill of exceptions containing the evidence in this case appears to have been signed by the judge and filed in open court on January 20, 1899. We are therefore bound to presume, under such circumstances, nothing to the contrary appearing, that the bill was filed after it had been signed by the trial judge. This disposes of appellant's second contention.
The trial of this cause, as we have stated, occurred at the September term, 1898, of the lower court. The court's finding was not announced until the next term, being the November term following. At the same term that the court announced its finding, appellant filed his motion for a new trial. Immediately after filing this motion, on the same day, he filed in open court his bill of exceptions containing the evidence. The motion for a new trial was not overruled until the February term next following.
It is provided in § 638 Burns 1894, § 626 R. S. 1881 and Horner 1897, that an exception must be taken by the objecting party to the decision of the court at the time it is made; but time may be given to reduce the exception to writing, but not beyond the term unless by special leave of court. It is further provided by this section that, if a motion for a new trial be filed, in which such decision is assigned as a reason therefor, such motion shall carry such decision and exception thereto forward to the time of ruling on the motion; and time may then be given within which to reduce such exception to writing. All that part of the above mentioned section which precedes the proviso is identically the same as the section existed in the code of 1852 (§ 343, 2 Davis 1876 p. 176), and the provisions therein that time may be given to reduce the exception to writing, but not beyond the term except by special leave of court, must be construed in connection with the proviso engrafted upon this section of our present code. This proviso in effect declares that when a motion for a new trial is filed in a cause, in which motion any decision of the court is properly assigned as a reason for a new trial, the motion shall operate to carry such decision and the exception thereto forward to the time of ruling upon the motion; and time may then be given to reduce such exception to writing. Or, in other words, the court may then grant time in which to prepare a bill of exceptions and present the same to the trial judge for settlement and signing.
In the case at bar, the bill, it is true, was filed at a term subsequent to the one at which the evidence was introduced, and the rulings and exceptions thereto were reserved. It was filed on the same day, however, immediately following the filing of the motion for a new trial. This latter motion, under the proviso of the section of the code in question, operated to carry forward all the rulings or decisions of the court, which were and could be legitimately assigned as grounds for a new trial, to the time of filing the motion and up to and including the time at which the motion was denied.
By reason of the force and effect of said proviso, as we construe it, appellant was authorized as a matter of right to file the bill of exceptions in controversy, either at the term of court at which the trial was had, or at any time thereafter previous to the ruling upon his motion for a new trial, without first obtaining special permission of the court to do so. But in the event he had failed to file such bill prior to the ruling upon said motion, he would have been required, when the motion was overruled, to obtain a grant of time in which to prepare and present to the trial judge his bill of exceptions. If the bill, however, had been filed subsequent to the ruling upon the motion for a new trial, but before the close of the same term, under such circumstances, even if the record was silent in respect to the granting of time, this court would presume that time had been given, when the motion was overruled, in which to present the bill, and that such bill had been presented to the trial judge within the time allowed. But if it were properly disclosed upon appeal that the bill of exceptions was presented to the judge after the close of the term at which the motion for a new trial was denied, then, under such circumstances, the record entry of the order-book must affirmatively show that a time, which extended beyond such term, in which to prepare and present such bill to the trial judge for settlement and signature, was granted when the motion was overruled. Elliott's App. Proc. § 804.
The bill of exceptions in question, however, was filed at a previous term of the court, after the filing of the motion for a new trial, and was already on file at the time the motion for a new trial was overruled. Certainly, then, under the circumstances, it can not in reason be claimed that the statute intended or required that appellant, at the time the motion was denied, should obtain leave to do that which he had already done. We therefore conclude that the bill of exceptions in dispute is properly a part of the record in this appeal.
We next address ourselves to the question,--does the evidence sustain the court's decision? The material facts which the evidence indisputably establishes are apparently as follows The town of Sulphur Springs in Henry county, Indiana, is incorporated under the general laws of this State, and has been so incorporated for a period of about twenty years. On June 23, 1898, at a regular meeting of its board of trustees, Burton O. Post was by said board elected a school trustee for the school town of Sulphur Springs to fill a vacancy occasioned by the expiration of the term of one James Wright, then a member of the board of school trustees. Post was in all respects eligible to hold said office. No certificate of his election was issued to him, nor does it appear that he ever demanded such certificate. It is shown, however, that on June 24th, the day after his election, he was informed and notified that he had been elected a member of the board of school trustees. He did not take the oath of office after receiving such information nor did he make any effort to meet with the said board of school trustees. In fact, he did...
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