Taylor v. Butt
| Decision Date | 22 November 1972 |
| Docket Number | No. 1--672A11,1--672A11 |
| Citation | 289 N.E.2d 159,154 Ind.App. 196 |
| Court | Indiana Appellate Court |
| Parties | Leo W. TAYLOR, as Administrator of the Estate of Terry Lynn Taylor, Appellant, v. Andrea E. BUTT et al., Appellees. |
John W. Mead, Mead, Mead & Mead, Salem, John E. Wise, Louisville, Ky., for appellant.
Robert W. Davis, Corydon, Richard C. O'Connor, Orbison, Rudy & O'Connor, New Albany, James D. Allen, Salem, for appellees.
ON APPELLEE'S MOTIONS TO DISMISS OR AFFIRM
This cause is pending before the Court on the Motions to Dismiss or Affirm filed by the appellee Andrea Butt. One of said Motions is directed to the transcript and one is directed to the appellant's brief. Because of the result we have reached, this opinion is concerned only with the Motion directed to the transcript. That motion alleges that the bill of exceptions was never filed with the clerk, as evidenced by the Clerk's Certificate, and the absence of an order book entry showing the bill of exceptions was filed.
The complete transcript in this case is 248 pages long. The Clerk's Certificate appears at page 51 and certifies 'the foregoing transcript, pages 1 through 51, to be a true, complete and exact copy of all papers filed or offered to be filed with the Clerk of the Washington Circuit Court during the course of this action, including all process pleadings, motions, and other written documents, and a copy of the Order Book Entries as the same appears on the record in this office in the Civil Order Book'. The Clerk's Certificate is silent concerning the bill of exceptions. There is no other Clerk's Certificate in the transcript certifying that the bill of exceptions had been filed and made a part of the record. The Order Book Entries do not show that the bill of exceptions was filed. We have examined every page of the bill of exceptions and do not find any file mark of the trial court clerk as physical evidence of the filing of the bill of exceptions. We therefore conclude that the bill of exceptions was never filed and made a part of the record.
This was a cause of action by the plaintiff-appellant to recover damages for the wrongful death of his decedent, Terry Lynn Taylor, occasioned by the collision of decedent's motorcycle and an automobile driven by defendant-appellee, Andrea Butt. The case was tried to the court without a jury. After hearing the evidence, the trial court made findings of fact and conclusions of law and entered judgment for all the defendants and against plaintiff-appellant.
Appellant's Motion to Correct Errors has fifteen specifications, thirteen of which concern a finding of fact or a conclusion of law, and the remaining two alleging error in the court allowing the introduction of certain evidence. Each of these...
To continue reading
Request your trial
-
Paxton v. Paxton, 2-980A298
...1174; Bailey v. State, (1934) 206 Ind. 547, 188 N.E. 575; Rosenblower v. Schuetz, (1894) 141 Ind. 44, 40 N.E. 256; Taylor v. Butt, (1972) 154 Ind.App. 196, 289 N.E.2d 159. See Stewart v. State, (1980) Ind., 402 N.E.2d 973 (burden of providing appellate court with proper record is on Had the......
-
Jackson v. Jackson
...filing of the bill of exceptions with the clerk, are still valid and guide our decision in this case.' In the case of Taylor v. Butt et al. (1972) Ind.App., 289 N.E.2d 159, the Court had before it an appellee's motion to dismiss or affirm in which it was alleged that the bill of exceptions ......
-
Minton v. State
...pronounced, gives no sufficient reason." It is fundamental that courts speak only through their records. Taylor, Admr. v. Butt et al. (1972), 154 Ind.App. 196, 289 N.E.2d 159. Moreover on appeal the record is conclusive and imports absolute verity. 2 So. Ind. Gas v. Decker et al. (1974), 26......
-
M.S., In re
...604, 605. See also Zimmerman v. State (1982), Ind., 436 N.E.2d 1087, 1089. Courts speak only by their records. Taylor v. Butt (1972), 154 Ind.App. 196, 198, 289 N.E.2d 159, 161. Unless what did or did not happen at the hearing is made part of the record pursuant to AR 7.2(A)(3)(c), this cou......