The Evansville Suburban & Newburgh Railway Co. v. Lavender

• Decision Date: 10 May 1893
• Docket Number: 917
• Parties: THE EVANSVILLE SUBURBAN AND NEWBURGH RAILWAY COMPANY v. LAVENDER, ADMINISTRATRIX OF THE ESTATE OF LAVENDER, DECEASED
• Court: Indiana Appellate Court

34 N.E. 109

7 Ind.App. 655

THE EVANSVILLE SUBURBAN AND NEWBURGH RAILWAY COMPANY v. LAVENDER, ADMINISTRATRIX OF THE ESTATE OF LAVENDER, DECEASED

No. 917

Court of Appeals of Indiana

May 10, 1893

Reported at: 7 Ind.App. 655 at 666.

From the Warrick Circuit Court.

Judgment affirmed.

A Gilchrist and C. A. De Bruler, for appellant.

S. R Hornbrook and J. S. Buchanan, for appellee.

DAVIS, J. REINHARD, C. J., took no part in the decision of this case.

OPINION

DAVIS, J.

In their brief filed in this court on the 9th day of September, 1892, counsel for appellee say:

"It may be proper to suggest, at this place, that very little, if any, of the transcript which has been filed constitutes a record before this court--if the complaint was ever filed it does not appear where and when--hence appellee asks that the court shall find that there is no proper record before it."

The brief in behalf of appellant was filed March 4th, 1892, and counsel for appellant, since the filing of appellee's brief, have made no response to the point relative to the defect in the transcript, raised by counsel for appellee.

The transcript filed in this court begins (without any preliminary or introductory preface or statement whatever) with what appears to be a copy of the complaint. This is followed by copies of entries and papers covering several pages, to which is attached a copy of a certificate of the clerk of the Vanderburgh Circuit Court, in which he certifies "that the foregoing is a full, true and complete copy of the orders of said court, made in said case, as the same appears of record in my office." There is no certificate or statement anywhere in the record that the paper or complaint referred to, which forms the introductory part of the transcript, was ever filed in the office of the clerk of the Vanderburgh Circuit Court, or in any other office. No papers or copies of papers are referred to in the foregoing certificate of the clerk. Immediately following said certificate, there appears what purports to be a transcript of certain proceedings in the Warrick Circuit Court, but there is no statement therein that any complaint or transcript of proceedings in the Vanderburgh Circuit Court was ever filed in the office of the clerk of the Warrick Circuit Court. The beginning of the transcript of the proceedings in the Warrick Circuit Court, following the said certificate of the clerk of Vanderburgh Circuit Court, is an entry relating to the filing of a reply by plaintiff and the submission of the cause to a jury for trial. Then, in final conclusion of the transcript, the clerk of the Warrick Circuit Court certifies "that the above and foregoing transcript contains true and complete copies of all the papers and entries in said cause."

This court might, if permissible under the authorities and rules of practice, indulge the presumption or inference that the complaint was at some time filed in the office of the clerk of the Vanderburgh Circuit Court, and that afterwards it was transmitted with the transcript of the "orders of said court," to the clerk of the Warrick Circuit Court, and that the certificate of the clerk of the Warrick Circuit Court was intended to include the papers which were filed, and the proceedings which were had, in the Vanderburgh Circuit Court; then we could enter upon the consideration of the questions which counsel for appellant have sought to present, but there is absolutely nothing in the record, except as indicated, tending to show that the complaint was ever filed in the office of the clerk of the Vanderburgh Circuit Court, or in any other office, or that it was transmitted to the clerk of Warrick Circuit Court.

In this connection it is proper to state that it does appear, from what we have said concerning the transcript of the record presented by appellant on this appeal, that certain proceedings were had on the action in the Vanderburgh Circuit Court, and that on the 11th day of December, 1890, "the defendant's demurrer to the plaintiff's complaint heretofore filed being submitted to the court, and the court being duly advised, now here overrules said demurrer, to which ruling of the court the defendant excepts," and that afterwards the venue of the cause was changed to the Warrick Circuit Court.

The errors assigned are:

"1. The Warrick court erred in overruling the demurrer to the complaint.

"2. Said court erred in overruling the motion for a new trial."

The transcript does not indicate, in any manner, that any demurrer was ever filed to the complaint, or ruled on, in the Warrick Circuit Court. In fact, with the exception of the reference to the demurrer "heretofore filed," and the statement afterwards made, "said demurrer is in the words and figures as follows," then setting out the demurrer, it is not shown that any demurrer was ever filed. We now return to the principal question under consideration.

This appears to have been an attempt to prosecute an appeal pursuant to the provisions of section 640, R. S. 1881, which provides, that "such appeals may be taken by procuring from the clerk of the court a transcript of the record and proceedings in the suit, or so much thereof as is embraced in the appeal, and filing the same in the office of the clerk of the Supreme Court," etc.

Sections 649 and 650 are in relation to the preparation of the transcript and what it shall contain. The concluding part of section 649, supra, is as follows: "A transcript of the record in the cause, or so much thereof as the appellant, in writing, directs, certified and sealed, to which shall be appended the written directions of the appellant above contemplated, if any."

Section 650, supra, provides that "all proper entries made by the clerk, and all papers pertaining to a cause, and filed therein (except, etc.) are to be deemed parts of the record."

Section 186 of Elliott's Appellate Procedure is as follows:

"The transcript is the source from which appellate tribunals obtain their knowledge of the facts involved in the controversy between the parties before them, as well as the source from which they derive their knowledge of the questions upon which it is their duty to pronounce judgment. The reports contain many cases where parties acted as if they were ignorant of this principle, and this excuses the statement of a principle so plain as to scarcely excuse its expression in words. The courts have again and again adjudged that appeals are heard upon the record and by the record determined. The principle is often thus expressed, 'errors must be manifest on the face of the record.' It is the duty of the party who asks an appellate tribunal to reverse the judgment of a trial court to bring to the higher court 'a perfect record.' The record as embodied in a properly prepared and duly authenticated transcript imports absolute verity, and can not be aided, varied, or contradicted by extrinsic evidence. The record can not be contradicted by a plea in the appellate tribunal. For what is done in the trial court the Supreme Court 'will look only to the transcript of its record.' If the transcript does not contain all that is essential to show error the appeal will fail, since errors will not be presumed to exist, and a radically imperfect transcript can not show error." See sections 198, 200, 201, 202.

The record must be complete in itself. Section 195.

The court will not act upon matters not properly in the record, if attention be directed to the infirmity in the transcript. Section 196; see Bain v. Goss, 123 Ind. 511, 24 N.E. 361.

The rule is well established that on appeal the appellate tribunal will indulge the presumption that there is no error in the proceedings and judgment of the trial court, and that it is incumbent on the appellant, before he can succeed, to bring before the court a transcript of the record, or some part thereof, which affirmatively shows that there is manifest error in some specific particular. Martin v. Martin, 74 Ind. 207.

In Collins v. United States Express Co., 27 Ind. 11, the Supreme Court said: "But it does not contain a copy of the complaint, without which no question is presented by the record for the decision of this court. It was incumbent on the appellants to bring to this court a perfect record of the judgment and proceedings of the court below, on which errors could be assigned. The complaint forms a necessary part of the record of a cause, and the record before us contains ample evidence that a complaint was filed in the case, but it is omitted in the record filed by the appellants. In the absence of the complaint, the record filed fails to present any question for the decision of this court." See, also, McCardle v. McGinley, 86 Ind. 538 (541); Fellenzer v. Van Valzah, 95 Ind. 128.

The rule is well settled by the authorities that where the transcript is defective the appellate court may either affirm the judgment or dismiss the appeal. Allen v. Gavin, Admr., 130 Ind. 190, 29 N.E. 363.

In this case there has been no effort to appeal on "any question of law decided by the court during the progress of the cause" (section 630, R. S. 1881), or to prosecute the same on "so much thereof as is embraced in the appeal" (section 640, supra), or to bring before this court "so much thereof as the appellant, in writing, directs," section 649, supra. The effort has been to bring a "full and complete transcript." Buskirk's Practice, pages 81, 82, 83.

The rule in such case is that "the complaint, then, is a part of every record, and if it were necessary to procure a transcript of the whole of any record, in order to appeal, an appeal could not be taken unless the transcript embraced the complaint." Heizer v. Kelly, 73 Ind. 582 (584); Seager v. Aughe, 97 Ind. 285 (288).

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