Perry v. Baron

• Decision Date: 26 April 1972
• Docket Number: No. 1271A263,1271A263
• Citation: 281 N.E.2d 544,152 Ind.App. 29
• Parties: Jay PERRY, Appellant, v. Eric BARON, Appellee.
• Court: Indiana Appellate Court

Page 544

281 N.E.2d 544

152 Ind.App. 29

Jay PERRY, Appellant, v. Eric BARON, Appellee.

No. 1271A263.

Court of Appeals of Indiana, First District.

April 26, 1972.

Rehearing Denied May 17, 1972.

Donald R. Ewers, Bates & Ewers, Evansville, for appellant.

Robert H. Hahn, Bamberger, Foreman, Oswald & Hahn, Evansville, for appellee.

ON APPELLEE'S MOTION TO DISMISS OR AFFIRM

PER CURIAM.

This cause is before the Court on the appellee's motion to dismiss or affirm, which alleges as cause therefor multiple defects in the record of the proceedings and in the appellant's brief.

This was a cause of action in the trial court for damages for personal injuries allegedly sustained by the plaintiff-appellant in an automobile collision. A default judgment was entered against the defendant-appellee. Thereafter, defendant-appellee filed in the trial court his motion to set aside default, which the trial court granted.

The plaintiff-appellant now seeks to appeal the judgment of the trial court setting aside its earlier default judgment. The issue appellant seeks to present to this Court on appeal is whether or not service of process was had upon the defendant-appellee.

The appellant's motion to correct errors filed in the trial court alleged that the Court committed error in setting aside the Order of Default in that the court's action:

1. Was contrary to law inasmuch as the evidence indicated proper service was obtained over the defendant;

2. Was not supported by sufficient evidence;

3. Was contrary to the evidence; and

4. Was an abuse of the court's discretion in the following respects:

(a) evidence shows service of process over the defendant;

(b) evidence shows defendant was properly defaulted in open court;

(c) evidence shows defendant ignored service of process.

The appellant attempts to argue those points in his brief. All of these points require an examination of the evidence for their determination. Appellee asserts that the evidence is not in the record because there is nothing to indicate the transcript of the evidence was ever filed with the clerk and made a part of the record.

We have examined the record of the proceedings and find that the record and the evidence together occupy one hundred seven pages. The clerk's certificate is found at page 66, at the center of the record of the proceedings, between the record and the transcript of the evidence. It certifies the 'foregoing transcript', and is dated December 9, 1971. Since the clerk's certificate appears at page 66 of the record, the remainder of the record, consisting of pages 67 through 107, is not certified as being a part of the record of the trial court, and we cannot consider the material contained in those pages. Pintozzi et al. v. Small et al. (1959), 130 Ind.App. 570, 159 N.E.2d 142. The clerk's certificate should be the last item in the record of the proceedings, as it must follow all of the proceedings which it purports to authenticate. McCracken v. Hunter et al. (1962), 134 Ind.App. 157, 186 N.E.2d 884; Diane Company, Inc., etc., et al. v. Beebe (1960) 131 Ind.App. 161, 145 N.E.2d 20, 169 N.E.2d 542. As further evidence of counsel's lack of attention to detail in the preparation of the record for filing, we note that this case was docketed in, and judgment rendered in the Vanderburgh Superior Court. However, the clerk's certificate identifies the clerk as the Clerk of the Circuit Court, and the clerk has signed the certificate as the Clerk of the Circuit Court, not as the Clerk of the Superior Court.

The Judge's certificate to the transcript of the evidence approving the same and ordering it to be filed is dated December 13, 1971, four days after the clerk purported to certify the same as having been approved by the Judge and filed. There is no order book entry showing the filing of the transcript of the evidence with the clerk. We have carefully examined every page of the transcript of the evidence, and nowhere does the file stamp of the trial court clerk appear thereon as evidence of its having been filed with the clerk of the trial court. We, therefore, conclude that the transcript of the evidence was not made a part of the record, is not properly before us, and we cannot decide the issues attempted to be raised by the appellant, all of which require a consideration of the evidence for their decision. Pintozzi et al. v. Small et al., supra; Murphy, et al. v. Hendrick (1959), 129 Ind.App. 655, 157 N.E.2d 306; Wiltrout, Indiana Practice, Vol. 3, § 2363.

This Court has previously held that where it is not properly shown that the bill of exceptions was filed, it is not a part of the record on appeal. Coney v. Farmers State Bank (1970), Ind.App., 256 N.E.2d 692; Findling v. Findling (1963), 134 Ind.App. 661, 186 N.E.2d 892.

Our Supreme Court amended its Rule AP. 7.2, effective January 1, 1971, to require that the transcript of the proceedings at the trial be presented to the trial judge, who shall examine the same; if correct, sign the same, and order the same filed and made a part of the record in the clerk's office. Thus, the cases decided before the adoption of the new rules of...