Robinson v. Anderson

• Citation: 106 Ind. 152,6 N.E. 12
• Parties: Robinson and others v. Anderson and others.
• Decision Date: 03 April 1886
• Court: Supreme Court of Indiana

106 Ind. 152

6 N.E. 12

Robinson and others

v.Anderson and others.

Supreme Court of Indiana.

April 3, 1886.

Appeal from Fulton circuit court.

J. S. Slick and B. D. Crawford, for appellant.

G. W. Holman and Rowley & Baker, for appellee.

Mitchell, J.

This appeal is from a judgment rendered on the twenty-sixth day of February, 1885. The record entry of that date shows that a motion for a new trial, filed by the plaintiff, was overruled, and an exception taken to the ruling. Sixty days' time in which to file bills of exception was allowed. On the twenty-seventh day of the ensuing April a bill of exceptions, containing the evidence and instructions of the court, was presented to the judge. It was signed on the twenty-ninth day of April, and filed on the fifth day of May, 1885. The date of presentation is stated in the bill.

Whether there is any question in the record for decision depends upon whether the bill of exceptions so presented, signed, and filed was a compliance with section 629, Rev. St. 1881. This section requires that a party objecting to a decision of the court “must, within such time as may be allowed, present to the judge a proper bill of exceptions, which, if true, he shall promptly sign, and cause it to be filed in the cause; if not true, the judge shall correct, sign, and cause it to be filed without delay. * * * Delay of the judge in signing and filing the same shall not deprive the party objecting of the benefit thereof.” Prior to the Revision of 1881 bills of exception, to be available, must have been signed and filed within the time allowed by the court. This resulted in many instances in great inconvenience and embarrassment, both to the judge and counsel, and occasionally in depriving a party of his objection. It was the manifest purpose of the section, as revised, to obviate this result. Accordingly it was provided that if a proper bill of exceptions is presented to the judge within the time allowed, his delay in signing, and causing it to be filed, shall not deprive the party of its benefit. Creamer v. Sirp, 91 Ind. 366;Hamm v. Romine, 98 Ind. 77.

In La Rose v. Logansport Nat. Bank, 102 Ind. 332,¹ it appeared that a bill of exceptions had been presented to the judge, and signed within the time allowed. It was not filed until some 20 days after it was signed, and after the expiration of the time allowed. Upon the assumption that the statute required the party presenting the bill to file it within the time allowed, unless he was prevented from so doing by the delay of the judge, it was there held that the bill was filed too late. While this case is in some respects distinguishable from the case cited, we think the construction there given to the statute was too narrow. It may deprive parties of some of the benefits intended by the statute. Where a party objecting has presented his bill of exceptions in proper form, within the time allowed, he has complied with the letter and spirit of the statute, and is entitled to the benefit of his exceptions. The bill of exceptions in this case was presented on the sixtieth day, and was therefore within the time allowed.

The facts which gave rise to the suit are the following: On the first day of July, 1884, Anderson and Harpster by an order in writing requested Robinson & Co., of Richmond, Indiana, to deliver to them, on board of cars, ready for shipment at their factory, one Bonanza separator, of certain size and description. The order was delivered to and forwarded by James A. Miller, of Plymouth, Indiana, who was the agent of Robinson & Co. to take orders and make sales, etc., within the county of Marshall, and other contiguous counties. It specified that the price of the separator should be $450, payable in installments of $150, due respectively November 1, 1884, 1885, and 1886, to be secured by notes payable in bank to Robinson & Co. The machine was shipped and received, and the notes executed payable to the order of Robinson & Co. according to the stipulation in the order and agreement. So far as appears, the machine was entirely satisfactory. It is not further involved in the controversy. The notes were delivered into the possession of Miller, who, under his contract with Robinson & Co., had authority to take orders for machines, make sales upon terms prescribed, take...