Nichols v. Cent. Trust Co.

• Decision Date: 08 January 1909
• Docket Number: No. 6,339.,6,339.
• Citation: 43 Ind.App. 64,86 N.E. 878
• Parties: NICHOLS v. CENTRAL TRUST CO. et al.
• Court: Indiana Appellate Court

43 Ind.App. 64

86 N.E. 878

NICHOLS

v.CENTRAL TRUST CO. et al.

No. 6,339.

Appellate Court of Indiana, Division No. 1.

Jan. 8, 1909.

Appeal from Circuit Court, Boone County; S. R. Artman, Judge.

Action by Earl O. Nichols against the Central Trust Company and another, receivers. From a judgment for defendants, plaintiff appeals. Affirmed.

Chas. B. Clarke, Walter C. Clarke, and A. J. Shelby, for appellant. Smith, Duncan, Hornbrook & Smith, for appellees.

MYERS, J.

The appellant brought his action against the appellees as receivers of the Indianapolis Drop Forging Company to recover damages for a personal injury incurred by the appellant while engaged in operating certain machinery in the service of the appellees. This action was commenced in the Marion superior court, and the complaint consisted originally of a single paragraph. After a trial and the granting of a new trial, the venue was changed to the Boone circuit court, where two additional paragraphs of complaint were filed. An answer of general denial to each paragraph of the complaint formed the issues submitted to a jury for trial, resulting in a general verdict for appellees, and with the general verdict the jury returned answers to 58 interrogatories. From a judgment in favor of appellees, appellant appeals, and here complains of the action of the lower court in refusing to allow an amendment to the third paragraph of the complaint, in overruling his motion for a new trial, and in overruling his petition for additional time in which to file a bill of exceptions containing the evidence. The first and second paragraphs of the complaint proceed upon the theory that the machine in question, a drop hammer, by long use had become weak and defective; that the appellees, upon complaint of the appellant, promised to repair the machine, and ordered the appellant to proceed with his work, but the appellees negligently failed to repair the machine. The third paragraph proceeded upon the theory that the appellees violated the statutory duty to guard the machinery.

It will be proper first to determine whether the evidence is in the record. At the April term of the trial court, June 30, 1906, appellant's motion for a new trial was overruled, and the court then gave 60 days to file a bill of exceptions, and thereupon rendered final judgment upon the verdict. At the September term of the court, September 13, 1906, appellant was permitted to file his petition for an extension of time for the filing of a bill of exceptions. This petition was overruled. The appellant on September 14, 1906, tendered to the court his bill of exceptions No. 2 containing the evidence, which on that day was signed by the court and filed.

The court had no authority, except as granted by the statute, to give time extending beyond the term for the presentation of the bill of exceptions. This special power must be granted at the time of the rulings excepted to or at the time of the ruling upon the motion for a new trial, which carries the rulings of the court assigned as causes for a new trial and the exceptions thereto forward to the time of the ruling on such motion. Citizens' Street Ry. Co. v. Marvil, 161 Ind. 506, 67 N. E. 921. When the time beyond the term has expired, there is no authority to extend the time. The court or judge has then no jurisdiction over the subject-matter, and cannot be given such jurisdiction by the agreement of the parties. The signing of a bill presented after the expiration of the time granted extending beyond the term gives no vitality to the bill. Lengelsen v. McGregor, 162 Ind. 258, 67 N. E. 524, 70 N. E. 248, and cases there cited; City of Huntington v. Boyd, 25 Ind. App. 250, 57 N. E. 939. By the act of April 15, 1905 (Acts 1905, p. 45, c. 40), provision is made for extending the time given for filing a bill of exceptions, with a proviso that the application for such extension “must be made prior to the expiration of the time first given.” In the case at bar the time first given had expired before the application for extension was made or any bill containing the evidence was presented. There was no error in overruling the application for extension, and, the presentation of the bill being after the expiration of the time granted beyond the term, the signature of the judge and the filing of the so-called bill could not make it effective for the want of a compliance with the statute. Therefore the evidence is not properly in the record.

During the progress of the trial, as stated in bill of exceptions No. 1 in the transcript, the appellant moved the court to be allowed to amend the third paragraph of his complaint by inserting in line 54 of said paragraph, after the words “board and hammer head,” the words “ways and uprights,” to which motion the defendant at the time objected, and the court, sustaining said objection, refused to allow said amendment to be made. No ground for the application to amend appears by the record to have been suggested to the court below, but we are told in appellant's brief that the proposed amendment was to make the complaint conform to the facts as they had been or could be established by proof, and reference is made by counsel to what is by them claimed to be a rule of practice where...