State v. Allison
| Decision Date | 04 April 1956 |
| Docket Number | No. 29343,29343 |
| Citation | 235 Ind. 294,133 N.E.2d 469 |
| Parties | STATE of Indiana, Appellant, v. William John ALLISON, Appellee. |
| Court | Indiana Supreme Court |
Edwin K. Steers, Atty. Gen., Robert M. O'Mahoney, Deputy Atty. Gen., Richard M. Givan, Owen Boling, Deputy Attys. Gen., John G. Tinder, Pros. Atty., Indianapolis, for appellant.
Kivett & Kivett, Indianapolis (Joseph L. Kivett, Indianapolis), for appellee.
Appellee has filed a motion to dismiss the appeal herein, or, in the alternative, to affirm the judgment of the trial court on the ground that the record presents no question to this court for consideration.
The case is here on appeal by the state from a judgment of the Marion Criminal Court, Division One, sustaining appellee's plea in abatement. 1
The finding and judgment is as follows:
'Come again the parties, the State of Indiana by the Prosecuting Attorney of the 19th Judicial Circuit of the State of Indiana by its duly qualified deputy James Rocap, and comes the defendant William John Allison in person by his attorneys Kivett & Kivett, and this cause having been heretofore submitted to the Court upon the defendant's answer by way of plea in bar and abatement and the evidence being submitted to the Court upon an agreed stipulation of facts and concluded, the State and defendant having made argument and the Court having seen and heard the evidence and being duly advised in the premises finds for the defendant on his answer in bar and abatement.
'It is therefore considered, adjudged and decreed by the Court that this action abate, exceptions to the State of Indiana.'
In order to determine the questions raised by the alternative motion we must first decide whether a consideration of the evidence is necessary to decide the main question in the appeal.
We consider the judgment of the trial court to be a final judgment abating the action; and we are at a loss to see how we are to determine the correctness of the trial court's ruling on the plea in abatement without a consideration of the evidence on which the court based its findings.
The state asserts that the trial court's ruling on the plea in abatement does not depend upon a bill of exceptions since the pleadings, which are part of the record, fully present the question. We do not agree. It follows that the evidence must be properly in the record for our examination.
Appellee sets forth three reasons why his motion should be sustained:
(1) That neither of the first two errors assigned is a proper independent assignment of error;
(2) That the amended praecipe is not properly in the record; and
(3) That the purported bill of exceptions is not properly in the record.
The errors assigned are:
'1. The court erred in sustaining appellee's plea in bar and abatement.
'2. The court erred in ordering that the action abate.
Error in sustaining a plea in abatement is not a proper independent assignment in a civil case, Hopkins v. Matters, 1916, 62 Ind.App. 676, 112 N.E. 248, and we see no reason why the same rule should not apply here. Hence, the sole proper assignment of error is the overruling of a motion for a new trial.
On August 5, 1955, appellant filed Praecipe for Transcript, as shown by the order book entry, requesting transcript of the following:
(a) Affidavit
(b) Defendant's Plea in Abatement
(c) Answer to Defendant's Plea in Abatement
(d) Stipulations of Fact filed July 20, 1955
(e) All docket entries and rulings of the court.
There appears at page 51 of the transcript an amended praecipe requesting in addition to the items specified in the original praecipe, the motion for a new trial, and ruling on motion for a new trial.
There is no entry in the record showing the filing of the amended praecipe with the clerk below, nor is it referred to in the certificate of the clerk to the transcript, filed in this court on October 17, 1955. See: Flanagan, Wiltrout & Hamilton, § 2201, Comment 11, pp. 55 and 56.
We cannot consider as a part of the record on appeal matters that are in no way certified to be such and whose only claim to consideration is the fact that they are bound under the same cover with matters which are properly certified. Hunter v. Stump, 1948, 118 Ind.App. 84, 76 N.E.2d 696.
Because the amended praecipe is not, for the reasons above mentioned, properly certified as a part of the record this appeal must be governed by the original praecipe filed on August 5, 1955. Such praecipe cannot be construed as a general praecipe and must be held to include only those papers, pleadings and entries specifically mentioned therein. Indiana Harbor Belt R....
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Ross v. Apple
...with the rules, but the rules have the force and effect of law and are binding on this court as well as the litigants. State v. Allison, 1956, 235 Ind. 294, 133 N.E.2d 469.' In accordance with Rule 2--22, and the line of case law cited herein, we are of the opinion that appellee's petition ......
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Hudson v. State
...of any and all errors derived from that portion of the record, such portion not being properly in the record. See State v. Allison, (1956) 235 Ind. 294, 133 N.E.2d 469; Messersmith v. State, (1940) 217 Ind. 132, 26 N.E.2d 908; Smith v. State, (1926) 198 Ind. 484, 154 N.E. 3; Paxton v. Paxto......
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Harding v. Brown, 867
...majority, either be clairvoyant as to the correct choice of procedure or run the risk of precluding such review. In State v. Allison (1956), 235 Ind. 294, 133 N.E.2d 469 and Bahar v. Tadros (1955), 125 Ind.App. 457, 126 N.E.2d 791 (cited in the majority opinion), the proceedings were held t......
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Muniz v. U.S.
...with the rules, but the rules have the force and effect of law and are binding on this court as well as the litigants. State v. Allison, 1956, 235 Ind. 294, 133 N.E.2d 469. Thus, it being apparent that the appellees did not, within the time allowed (20 days), serve upon the appellant herein......