Pere Marquette R. Co. v. Strange

• Decision Date: 18 November 1908
• Docket Number: No. 21,234.,21,234.
• Parties: PERE MARQUETTE R. CO. v. STRANGE.
• Court: Indiana Supreme Court

171 Ind. 160

85 N.E. 1026

PERE MARQUETTE R. CO.

v.STRANGE.

No. 21,234.

Supreme Court of Indiana.

Nov. 18, 1908.

On petition for rehearing. Petition overruled.

For former opinion, see 84 N. E. 819.

MONTGOMERY, J.

Come now the parties by counsel, and the court being fully advised in the premises, on the 18th day of November, 1908, being the one hundred and fifty-third judicial day of the May term, 1908, overrules the petition for rehearing heretofore filed herein by the appellee on July 23, 1908, with an opinion by MONTGOMERY, as follows, to wit:

In the original opinion appellant's bill of exceptions, containing the evidence, and motion for a new trial, were treated as properly in the record, without any discussion of the questions relating thereto made by appellee's counsel. On petition for a rehearing it is alleged that the court erred in holding such bill of exceptions and motion for a new trial to be in the record, and in holding that upon the evidence as a matter of law appellee was guilty of contributory negligence.

Appellee assigned as cross-error that the circuit court erred in its order of November 6, 1905, amending and correcting nunc pro tunc its order of July 25, 1905, so as to show that appellant was given 90 days in which to prepare and present its general bill of exceptions. The memoranda of the trial judge upon which the amendment nunc pro tunc was made were as follows: “Mo. filed for N. T. Mo. for N. T. ov. and ex. Pray ap. to Sup. Ct. and granted. Bond sum $15,000.00 by Sept. 11, '05, Ætna Indemnity Co. as surety. 90 days for bill of ex. Pltff. obj. to surety, ov. and ex.” These notes were clearly sufficient to justify the court in making the requested correction showing in accordance with the fact that appellant was given 90 days in which to prepare a bill of exceptions upon the overruling of its motion for a new trial.

On October 3, 1905, appellant filed a præcipe with the clerk of the circuit court calling for a complete transcript of the entire record in the cause, except that the original bill of exceptions containing the evidence be certified instead of a copy thereof; and on November 8, 1905, a further præcipe was filed requesting a transcript of the proceedings relating to the nunc pro tunc entry. The argument of appellee's counsel is that time beyond the term for filing the bill of exceptions being given only by the nunc pro tunc order of court, and that action not being sustained by sufficient evidence,...