Pension Fund of Disciples of Christ v. Gulley

• Decision Date: 19 January 1948
• Docket Number: 17618.
• Citation: 76 N.E.2d 694
• Parties: PENSION FUND OF DISCIPLES OF CHRIST v. GULLEY et al.
• Court: Indiana Appellate Court

76 N.E.2d 694

PENSION FUND OF DISCIPLES OF CHRIST v. GULLEY et al.

No. 17618.

Appellate Court of Indiana, in Banc.

January 19, 1948

Appeal from Montgomery Circuit Court; Howard L. Hancock, Special Judge.

Chester L. Zechial, of Indianapolis, for appellant.

Kane Blain & Hollowell and Fenton, Steers, Beasley & Klee all of Indianapolis, and Foley & Foley, of Crawfordsville, for appellees.

HAMILTON Judge.

Appellees Helen Clair Tucker and Otis E. Gulley, as executor and also as trustee under the last will and testament of Bernice E Shirley, have filed separate motions to dismiss this appeal.

Each of the motions have one specification in common, to wit: That the only questions presented by appellant's assignment of errors require a consideration of the evidence and the record does not show by a proper certificate of the trial judge that the bill of exceptions containing the evidence contains all of the evidence given in the cause; therefore, by reason of such insufficiency of the record no question is presented for consideration by the appeal. If this specification in each motion to dismiss is well taken, it is not necessary that we consider or discuss the other reasons assigned in each motion to dismiss.

An examination of the record discloses nowhere in the body of the bill of exceptions itself is there a statement that 'this was all of the evidence given in said cause' or any other statement of similar import.

In the certificate of the court reporter there was a statement to the effect that 'the foregoing is a longhand transcript of the shorthand notes taken in open court on said date including all of the evidence, objections thereto, rulings of the court thereon' etc.

It is firmly settled by the decisions of this court and the Supreme Court that the court reporter's certificate is no part of the bill of exceptions and cannot take the place of or supply any essential statement necessary to be contained in the judge's certificate to the bill of exceptions. Rowan v. State, 1916, 184 Ind. 399, 402, 111 N.E. 431; Baltimore & O. R. Co. v. Ranier, 1926, 84 Ind.App. 542, 549, 149 N.E. 361; Wagner v. Wagner, 1915, 183 Ind. 528, 530, 109 N.E. 47; McMurran v. Hannum, 1916, 185 Ind. 326, 330, 113 N.E. 238; Parker v. State, 1915, 183 Ind. 130, 131, 108 N.E. 517.

The judge's certificate to the bill of exceptions reads in part as follows:

'the said plaintiff, Pension Fund of Disciples of Christ, presented to the court in open court the attached and foregoing longhand manuscript of the shorthand notes incorporated in this, their bill of exceptions, and ask the same be signed, sealed and filed in this case.

'The court having seen and examined the same, finds that said longhand manuscript of this evidence, objections thereto, rulings of the court thereon and the exceptions taken and reserved thereto, offers to prove made during trial of said cause and ruling of the court thereon, all depositions and documentary evidence given in said cause, is a true and correct record of the shorthand notes thereof made by the court reporter at and during the trial of said cause, and that said bill of exceptions is a full, true and complete record of all such matters had in said cause during the trial thereof, and said bill of exceptions is now this 26th day of Feb. 1946, signed, sealed and filed and made a number in the record in said cause.'

It will be noted that nowhere in the judge's certificate to the bill of exceptions, supra, is there a statement that the same contains all of the evidence given in the trial of said cause or a statement that the same is a full, true, and complete...