Pittsburgh, C., C. & St. L. Ry. Co. v. Johnson

• Decision Date: 26 January 1911
• Docket Number: No. 7,660.,7,660.
• Citation: 93 N.E. 683,49 Ind.App. 126
• Court: Indiana Appellate Court
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. JOHNSON.

49 Ind.App. 126

93 N.E. 683

PITTSBURGH, C., C. & ST. L. RY. CO.

v.JOHNSON.

No. 7,660.¹

Appellate Court of Indiana, Division No. 1.

Jan. 26, 1911.

Appeal from Circuit Court, Pulaski County; F. J. Vurpallet, Judge.

Action by Carl Johnson against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Dismissed.G. E. Ross, for appellant. M. Winfield, Geo. A. Gamble, and M. M. Hathaway, for appellee.

HOTTEL, J.

This is an appeal from a judgment of $6,000 in favor of appellee, rendered in the Pulaski circuit court, against appellant. Appellee filed motion to dismiss the appeal, which, omitting the caption, is as follows: “Comes now the appellee, Carl Johnson, and moves the court to dismiss the appeal, in this cause, for the following reasons, to wit: By the return of the clerk of the Pulaski circuit court to the writ of certiorari issued in this cause, it fully appears that the judgment appealed from was rendered on the 8th day of October, 1908, by the Honorable John C. Nye, sole judge of said court, and that judgment was duly entered in Order Book No. 34 on page 402 of the records of the Pulaski circuit court, and that the transcript on appeal, in this cause, was not filed with the clerk of the Appellate Court until December 28, 1909, one year, two months, and eight days after the rendition of final judgment; that the appeal, therefore, is too late, and the appellee prays that said appeal be dismissed and for all other proper relief.” This appeal was taken to the Supreme Court, and the transcript was filed and the appeal perfected in that court on December 28, 1909. The case was afterwards transferred to this court. While the cause was pending in the Supreme Court, the appellee filed his petition for a writ of certiorari. This petition was afterwards granted, and the writ ordered and issued. On May 26, 1910, the clerk of the Pulaski circuit court filed his return to the writ. On May 31, 1910, appellee filed a motion for an order to modify the original order directing the issuing of the writ. On December 13, 1910, this court, per curiam, overruled said motion for the reasons following: “We are asked to modify the order heretofore made for certiorari in this cause, but we are of the opinion that the response filed on the 26th day of May, 1910, by the clerk of the Pulaski circuit court, to the certiorari issued herein sufficiently shows that the judgment in said cause was entered on the 8th day of October, 1908, but was not signed by the judge thereof until the 17th day of December, 1909. The motion to modify the order heretofore made in this cause for certiorari is therefore overruled.”

The transcript, as originally filed, affirmatively shows the following facts: That on October 8, 1908, the appellant filed its motion for a new trial. That on October 10, 1908, the appellant's motion for a new trial was overruled and exceptions given, and 90 days given in which to file bill of exceptions, and the defendant (appellant) prayed an appeal to the Appellate Court, which was granted “upon defendant filing bond in the sum of $8,000 with American Surety Company of New York, as surety thereon, within ninety days.” That in vacation, to wit, on December 31, 1908, the appellant filed its bond in said sum of $8,000 payable to Carl Johnson (appellee), conditioned as follows: “The condition of the above obligation is such that, whereas, heretofore, to wit, on the 9th day of October, 1908, the said Carl Johnson in the Pulaski circuit court recovered a judgment against the said Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company for the sum of six thousand dollars, in damages and cost of suit, etc., from which said judgment of said Pulaski circuit court, the said Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company appeal to the Supreme Court of Indiana: Now, if the said Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company shall and will duly prosecute said appeal, and abide by and pay the judgment and costs, which may be rendered or affirmed against it, then the above obligation to be null and void, otherwise to be and remain in full force and virtue in law. The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, by G. E. Ross, Its Solicitor. [Seal.] The American Surety Company of New York, by John F. Brookmeyer, Its Attorney in Fact. [Seal.]”

The return to the order of certiorari discloses that the original transcript incorrectly set out the proceedings of the court had on October 8, 1908, before the Hon. John C. Nye, the then regular judge of said court, in that it omitted the order book entry of said court of that date, to wit, October 8, 1908, which showed the rendition of the judgment as of that date, and, instead thereof, copied into that day's proceeding the notes of the judge made on his “court” or “bench” docket which notes contained no rendition of judgment. This return also shows that the transcript, as originally filed, incorrectly set out the proceedings of date December 17, 1909, which were had before the Honorable Francis J. Vurpillat, the then regular judge of said court, in that such transcript set out as a part of the proceedings of said date of December 17, 1909, the order-book entry of date October 8, 1908, showing the rendering of the judgment, thereby transposing the entry of proceedings had before the Hon. John C. Nye of date October 8, 1908, when judgment was rendered, and making it a part of the proceedings had before the said Francis J. Vurpillat of date December 17, 1909, and showing the rendering of the judgment of that date. This return to the order of certiorari certifies that the entry on page 571 of the transcript originally filed (which the transcript shows to be an entry of the proceedings had on the 17th day of December, 1909), contains in fact a copy of the entry of proceedings had on October 8, 1908, which is the entry containing the judgment, and the return to said writ of certiorari also shows that no other judgment was ever rendered in the case. The return to the writ also sets out and certifies to an entry from the “court” or “bench” docket of said court of proceedings had in said cause on November 15, 1909, showing the filing of a motion in arrest of judgment of that date, which was overruled and exceptions saved by the defendant, a prayer for appeal to the Appellate Court, prayer granted upon the filing of bond in the sum of $10,000 in 10 days, with Rufus L. Mayer as surety, the approval of the surety, the filing of the bond and its approval. The return to the writ of certiorari also sets out and certifies to another entry from the “court or bench docket” of date of December 2, 1910, being since the filing of this transcript, which we think unnecessary to set out here.

We think we have, in the above statement, set out enough of the contents of the record in this case, as shown by the transcript in the case originally filed, and by the return to the order of certiorari, correcting and amending the same, to show conclusively that the judgment from which this appeal was taken was rendered on October 8, 1908, in proceedings then had in said cause before the Honorable John C. Nye, the then regular judge of the said court, in which said cause was then pending, and that afterwards, to wit, on December 17, 1909, said judgment was signed by the Honorable Francis J. Vurpillat, the then regular judge of said court in which said judgment was before rendered. These being the facts presented by the record, Was the appeal perfected within the time fixed by the statute, controlling appeals and fixing the time limit within which they shall be perfected?

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