The Importers' and Traders' National Bank v. Knight

• Decision Date: 08 October 1897
• Docket Number: 2,121
• Citation: 47 N.E. 837,18 Ind.App. 257
• Parties: THE IMPORTERS' AND TRADERS' NATIONAL BANK v. KNIGHT
• Court: Indiana Appellate Court

47 N.E. 837

18 Ind.App. 257

THE IMPORTERS' AND TRADERS' NATIONAL BANK v. KNIGHT

No. 2,121

Court of Appeals of Indiana

October 8, 1897

From the Delaware Circuit Court.

Affirmed.

Wood & Ellis, A. M. Wagner, J. Bingham and J. R. Long, for appellant.

W. W Orr, for appellee.

OPINION

BLACK J.

The questions which the appellant has sought to present cannot be decided, if, as suggested by counsel for the appellee, the bill of exceptions in the transcript purporting to contain the evidence and the instructions to the jury may not properly be regarded as a part of the record. Immediately preceding the bill of exceptions is the following: "Be it remembered that on the 12th day of July, 1895, the following bill of exceptions was filed in the clerk's office of the Delaware Circuit Court, in these words, to wit:" At the end of the bill, immediately preceding the signature of the judge, is the following "And now, this 12th day of July, 1895, plaintiff tenders this its bill of exceptions, and prays that the same may be signed, sealed, and made a part of the record, which is done, this 13th day of July, 1895."

It does not appear that the bill was filed after it was signed by the judge. In Makepeace v. Bronnenberg, 146 Ind. 243, 45 N.E. 336, where, so far as the record disclosed, the only filing of a bill of exceptions set out in the transcript was before it was signed by the judge, our Supreme Court refused for this reason to treat it as part of the record. The court said: "The settling and signing of a bill of exceptions is a judicial act, and in the absence of the judge's signature it can have no existence or validity. After it has received his signature it must be filed in order to become a part of the record." See, also, Louisville, etc., R. R. Co. v. Schmidt, 147 Ind. 638, 46 N.E. 344.

We must sustain the appellee's objection, and hold that the bill is not a part of the record.

The appellant has filed its motion in this court for permission to withdraw the record from the files of the court, to have the judge of the Delaware Circuit Court file this bill of exceptions with the clerk of that court in the clerk's office of that county, "and thereupon cause said clerk to amend said record by showing the filing of said bill of exceptions with the clerk of said court, and recertify the same as amended to this court."

The transcript for this appeal, with the appellant's assignment of error, was filed in the office of the clerk of this court on the 6th of June, 1896, a short time before the expiration of the period within which an appeal could be brought, the judgment below having been rendered on the 31st of May, 1895. The cause was submitted on the 5th of June, 1896, and briefs upon the merits have been filed by both parties. The motion for permission to withdraw the record above mentioned was filed on the 22d...