Rutherford v. Prudential Ins. Co.

Decision Date16 February 1904
Citation70 N.E. 177,32 Ind.App. 423
PartiesRUTHERFORD v. PRUDENTIAL INS. CO.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Perry County; C. W. Cook, Judge.

Action by Harry Rutherford against the Prudential Insurance Company. From a judgment in favor of defendant, plaintiff appeals. On motion to dismiss. Overruled.

W. A. Land and W. M. Waldschmidt, for appellant. George J. Lindeman and Patrick & Minor, for appellee.

WILEY, P. J.

Appellee has interposed a motion to dismiss the appeal upon the ground that “no præcipe is incorporated in the transcript.” This motion is predicated upon the act of March 9, 1903, “concerning proceedings in civil procedure” (Acts 1903, p. 338, c. 193). Section 7, p. 340, of that act, among other things, provides that “any party or person desiring a transcript of the record of any cause or proceeding, or of any part thereof, for appeal, may file with the clerk a written præcipe therefor. If such party or person desires a transcript of the entire record, it shall be sufficient to so state in the præcipe; if a complete transcript be not desired, then such party or person shall indicate in the præcipe the parts of the record desired. And in the event that any other party to the judgment shall desire a complete transcript of the record upon such appeal, or that any part or parts not required by the præcipe so filed shall be included in the transcript, he may file with the clerk his præcipe in like form. Such præcipe shall constitute a part of the record. *** The præcipe shall be copied in the transcript immediately before the certificate of the clerk.” Counsel for appellee assume that this statute is mandatory, and that the appealing party, whether he requires a partial or complete record, must so indicate by a præcipe, and such præcipe must be filed as a part of the record. Under section 661, Burns' Rev. St. 1901, where an appealing party desires only a partial record, he is required to designate in writing the particular parts of the record to be certified, and such written directions shall be appended to the transcript. This provision of the statute is mandatory. In such case the clerk, in his certificate, should specify what parts of the record he has copied. Reid v. Houston, 49 Ind. 181. If it does not appear that any præcipe was filed, it is the duty of the clerk to make out and certify a complete transcript of the cause. Barnes v. Pelham et al., 18 Ind. App. 166, 47 N. E. 648. The...

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7 cases
  • Scott v. Lafayette Gas Co.
    • United States
    • Indiana Appellate Court
    • December 15, 1908
    ...Procedure, § 200; Acts 1903, p. 338, c. 193, § 7; Burns' Ann. St. 1901, § 661; Burns' Ann. St. 1908, § 690; Rutherford v. Prudential Ins. Co., 32 Ind. App. 423, 70 N. E. 177;Workman v. State ex rel., 165 Ind. 42, 73 N. E. 917;Price v. Huddleston, 167 Ind. 536, 79 N. E. 496. The motion is th......
  • Scott v. Lafayette Gas Co.
    • United States
    • Indiana Appellate Court
    • December 15, 1908
    ... ... 338, ... § 7; § 690 Burns 1908, § 649 R. S. 1881; ... Rutherford v. Prudential Ins. Co. (1904), ... 32 Ind.App. 423; Workman v. State, ex ... rel., (1905), 165 ... ...
  • Abney v. Indiana Union Traction Co.
    • United States
    • Indiana Appellate Court
    • January 15, 1908
    ...make a complete transcript. Section 661, Burns' Ann. St. 1901; Featherngill v. State ex rel., 33 Ind. App. 684;Rutherford v. Prudential Ins. Co., 32 Ind. App. 423, 70 N. E. 177. Appellant excepted to and complains of a number of the instructions given at the request of the defendant, but es......
  • Featherngill v. State, ex rel. Wright
    • United States
    • Indiana Appellate Court
    • October 25, 1904
    ... ... and was not changed thereby. Acts 1903, p. 338; ... Rutherford v. Prudential Ins. Co., 32 ... Ind.App. 423 ...          Section ... two of "an act ... ...
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