Montgomery Ward & Co. v. Thalman
| Decision Date | 27 December 1949 |
| Docket Number | No. 17892,17892 |
| Citation | 89 N.E.2d 294,120 Ind.App. 473 |
| Parties | MONTGOMERY WARD & CO., Inc. v. THALMAN et al. |
| Court | Indiana Appellate Court |
McClure, Shenk & Ellis, Kokomo, David L. Dickson, Chicago, Ill., Francis D. Roth, Chicago, Ill., Henry R. Sackett, Gary, for appellant.
Barnes, Hickam, Pantzer & Boyd, Indianapolis, Don P. Strode, Kokomo, Earl B. Barnes, Indianapolis, Robert S. Ashby, Indianapolis, for appellee.
The transcript and assignment of errors in this case were filed in the office of the Clerk of this court on April 23, 1949. The transcript shows, by order book entry under date of April 12, 1949, the approval and filing of a bill of exceptions containing the evidence. The final certificate of the clerk of the Howard Circuit Court is dated April 1, 1949, which date of course precedes that upon which the order book entry appears to have been made.
On June 21, 1949, the appellees filed a motion to dismiss this appeal on the ground that the filing of the bill of exceptions was not properly shown by the record. That motion was overruled with opinion by this court filed October 17, 1949, and appearing in Ind.App., 88 N.E.2d 53.
On September 2, 1949, the appellant filed in this court its verified petition whereby it seeks a writ of certiorari, or other order of this court authorizing the correction of the date appearing in the clerk's certificate, which date is alleged to be erroneous in that, while the certificate appears to have been signed on April 1, 1949, it was, in truth and in fact, signed on April 12, 1949, after the bill of exceptions had been settled by the court and the order book entry above referred to had been made.
This court recognized its right to act in the premises, but was unable to agree on a decision of that petition, and the case was ordered transferred to the Supreme Court. Thereafter, in an opinion filed on the 16th day of December, 1949, and reported in Ind.Sup., 89 N.E.2d 220, the Supreme Court said the question presented by appellant's petition must be passed upon and decided by this court, and the case was remanded to this court.
This court has now further considered the petition for writ of certiorari or other appropriate relief, the objections to the granting thereof filed by the appellees, and the briefs filed by the parties.
By the verified petition and the affidavits in support thereof, which are uncontroverted, it is shown to the satisfaction of this court that whereas the certificate of the clerk of the Howard Circuit Court appears to have been made on April 1, 1949, it was in truth and in fact made on April 12, 1949, after the bill of exceptions was approved and filed and the order book entry was made. The circumstances out of which the mistake and inadvertence arose are detailed in the said verified petition and supporting affidavits.
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