The Cook Brewing Company v. Ball

• Decision Date: 22 February 1899
• Docket Number: 2,703
• Parties: THE COOK BREWING COMPANY v. BALL
• Court: Indiana Appellate Court

52 N.E. 1002

22 Ind.App. 656

THE COOK BREWING COMPANY v. BALL

No. 2,703

Court of Appeals of Indiana

February 22, 1899

Rehearing denied June 30, 1899.

From the Warrick Circuit Court.

Affirmed.

Charles L. Wedding, for appellant.

S. R Hornbrook, J. E. Williamson and W. M. Wheeler, for appellee.

OPINION

BLACK, C. J.

The appellee recovered judgment against the appellant in the sum of $ 1,000 for personal injury. It is assigned that the court erred in overruling the appellant's motion for a new trial.

The appellee has moved to dismiss the appeal. The first and second grounds of the motion are, in effect, because the evidence is not properly in the record, and because "the bill of exceptions" is not properly in the record. These are not good grounds for a motion to dismiss an appeal. It is proper to call the attention of this court to any such supposed insufficiency in the record, and this court,--the matter coming to its notice by its own examination of the record, or through the suggestion of counsel,--will not reverse the judgment for an alleged error insufficiently shown by the record. The third ground in the motion to dismiss is that the first brief filed by the appellant is not a sufficient brief under the rules of this court. While the brief in question does not contain a full and satisfactory discussion of the assigned errors relied upon, it can not be said to be entirely inadequate. The fourth and last ground in the motion is that the transcript contains no precipe giving directions to the clerk what to certify up; that in this case his duty was to certify a complete record, while the record itself shows that it is incomplete, in that it shows that the action originated in the Vanderburgh Circuit Court, while the record gives no history of the case in said court.

The record shows that the complaint, which is set out, was filed in the court below, on change of venue from the Vanderburgh Circuit Court. At the end of the transcript the clerk certifies that "the above and foregoing transcript contains true and complete copies of all papers and entries in said cause as set out." The appellee submitted his cause to the court below, and recovered his judgment under the complaint so set out in the record. He is not in position to deny the jurisdiction of the trial court, and he does not pretend to do so. If the certificate of the clerk, as above stated, was not correct, and there were other papers or entries constituting parts of the record of this cause remaining in the court below, a transcript thereof, upon proper application, might have been brought into this court. We do not find any sufficient reason for the dismissal of the appeal.

The question whether or not the evidence is in the record is one which is always before us when any matter requiring its presence is to be considered. If we find upon examination of the transcript that the evidence is properly in the record, we need not so state unless we are called upon to do so by some proper objection or suggestion of counsel. As already remarked, a motion to dismiss the appeal will not lie for such a cause, and, having concluded that the evidence is properly before us, we perhaps might pass the matter without further remark; yet we will notice the objections of counsel briefly. The transcript is without any fault in this regard, but it is claimed on behalf of the appellee that the longhand manuscript of the evidence was not incorporated in the bill of exceptions when it was presented to the judge, and signed by him, but that it was attempted to incorporate it by a direction to the clerk by the words "Here insert." In seeking to impeach the record in this court in this respect, the appellee procured a certiorari, and the clerk of the court below has certified to this court the original bill of exceptions, except, of course, the original longhand report of the evidence already here. Affidavits relating to this matter also have been filed in this court. If we were to try the question upon the showing thus made, our conclusion would not uphold the appellee's position. But the record in this court cannot thus be made up or changed. The appeal must be determined upon a transcript of the record remaining in the court below, except so far as the statute otherwise permits, as in the case of the certification of the original longhand report of the evidence instead of a transcript thereof.

As one of the reasons for claiming that the evidence is not properly before us, it is suggested that it does not appear that the appellant directed the clerk to certify up the original longhand report of the evidence, and that it was the clerk's duty to copy the entire record. The transcript of the record, with the appellant's assignment of errors attached, having been filed in this court, we will not presume against the record that the clerk did not have the authority of the appellant to certify up the original report of the evidence, instead of his copy thereof. It is not necessary that the record show the appellant's request for the certification of the original report of the evidence. It is further objected that the record shows the introduction of evidence which is not set out in the record. This objection relates to an almanac, but the record shows, not that it was introduced, but only that it was offered in evidence.

One of the grounds of the motion for a new trial was the refusal of the court to permit the appellant to read "certain parts of the deposition of the plaintiff, Harry N. Ball, taken November 20, 1896, and in ruling that the defendant should not put in evidence any part of the deposition unless he put in all, and thereby obliging the defendant to put in evidence the entire deposition, to get the benefit of any." A writing purporting to be a deposition of Harry N. Ball, the plaintiff, and having his name attached thereto, was produced on the trial. The plaintiff was a witness on the trial, and then testified that this paper was the deposition he had given in the case, and that after giving it he had read and signed it; and while so testifying upon the trial he was interrogated concerning some of the questions and answers in that paper. At a subsequent stage of the trial, to which the statement of cause in the motion for a new trial relates, the appellant, as shown by the record, offered in evidence parts of the deposition not specified in the offer except as parts testified and sworn to at the former stage of the trial. The appellant, it is shown by the record, asked to introduce these parts "because the plaintiff himself testified that he made the distinct statements which are indicated, and offered to be read in evidence, and that he testified to the statements separate from other parts of the deposition." The court sustained appellee's objection to the introduction of the parts, but permitted the whole deposition to be introduced. It appears from the statement of counsel in making the offer to read the parts that they were not offered for the purpose of impeachment, for when read to the witness on the trial he testified that he had so stated in his deposition. The deposition in question appears to have been intended as an examination of the appellee taken at the instance of the appellant, under the statute, section 518 et seq. Burns 1894, section 510 et seq. Horner 1897. It is there provided that the examination may be had "before any officer authorized to take depositions," and that it "shall be taken and filed as a deposition in the cause, and may be read by the party taking it, at his option." In Scott v Indianapolis Wagon Works, 48 Ind. 75, it was held to be error to permit a part of such an examination to be read in evidence by the party taking it. It was said by the court: "The whole deposition or examination should have been read in evidence." We observe that it is not shown by the record that the examination was filed as a deposition in the cause, and, further, that it...