The Pennsylvania Company v. Sears

• Decision Date: 30 January 1894
• Docket Number: 14,971
• Citation: 36 N.E. 353,136 Ind. 460
• Parties: The Pennsylvania Company v. Sears
• Court: Indiana Supreme Court

36 N.E. 353

136 Ind. 460

The Pennsylvania Company v. Sears

No. 14,971

Supreme Court of Indiana

January 30, 1894

Original Opinion of May 10, 1893, Reported at: 136 Ind. 460.

OPINION

McCabe, J.

A very earnest petition for a rehearing is presented in this case in which it is insisted with apparent candor that we were not justified by the record, in our statement in the original opinion to the effect that the depositions were not copied into the bill of exceptions.

The learned counsel, in his brief for a rehearing, says:

"And this court further says 'and they were not copied into the bill.' We submit that the court ought not to state that as a fact, and especially as the fact upon which the decision is made to turn, from anything shown in the clerk's return or any affidavit of Metzger. Mr. Metzger does not say that the original depositions were inserted, or that copies of the depositions were inserted 'but such depositions.' Such depositions may have been copies, or they may have been original, and this court ought not to conjecture as to one or the other for the purpose of overthrowing the record solemnly certified to by the clerk in the office at the time. This court uses the further language 'But the originals thereof were placed inside of the paper on which that part of the bill was written.' This we respectfully submit, even if the affidavit of Metzger is to be looked to, is an entire mistake and therefore a misstatement of what is shown. Mr. Metzger's language is--'and such depositions were placed inside of said bill of exceptions at said point,' and not 'inside of the paper on which that part of the bill was written,' as stated by the court. Mr. Metzger, in his affidavit, was treating the whole as a bill of exceptions, the sheet which preceded the stenographer's transcript of the evidence and the sheet which followed the evidence and preceding the depositions, and the depositions and all else which was presented to him as the bill of exceptions in the case. If the affidavit does not mean this, it means nothing, and should be disregarded in toto, as we feel it should be in any event."

The difficulty with the learned counsel's strictures is that he does not quote enough of the affidavit to enable any one to know what it does mean. The affidavit states that "the longhand manuscript of the evidence filed with the clerk of said court theretofore, to which was attached the original bill of exceptions, * * an exact copy of which except the evidence and depositions therein referred to, is made part hereof, and such copy attached is number pages 1 2, 3, and 4; that page 1 of said bill of exceptions, as shown by said copy, was placed between the upper cover of said transcript and the first page thereof, immediately preceding the beginning of the evidence, but was not otherwise fastened; * * * that on the 3d page of said original bill of exceptions as shown by page 2 of said copy, a space was left for depositions and such depositions were placed inside of said bill of exceptions at said point, but not otherwise fastened."

Now, why ought we not to say, from the foregoing statement, that the depositions were not copied into the bill? Speaking of the bill, the affidavit says "a space was left for the depositions." Space clearly has reference to the paper on which the bill of exceptions was written, that is, that there was space left on that paper. What was it left for? The affidavit says for depositions, that is, space was left on the paper on which the bill of exceptions was written, for depositions. And, now, what was done with that space?

We have said the depositions were not copied into the bill, of which counsel complains as a statement not warranted by the record. Were the depositions copied into that space? The affidavit answers that inquiry by the language: "A space was left for depositions, and such depositions were placed inside of said bill of exceptions at said point, but not otherwise fastened."

The reason we felt justified, looking to the affidavit alone, in holding that this language implied and meant that the depositions were not copied into the bill, is that if they had been copied into the bill, they would have been copied into the space left for them, and had they been so copied into that space it would have been a grotesque perversion of language to say, as is said in the affidavit, that "such depositions were placed inside of said bill of exceptions at said point, but not otherwise fastened."

If they had been copied into the bill, there would have been no sense in saying that they were "not fastened, or not otherwise fastened," no more than for us to say that the language we are now writing on this paper is "not fastened," or "not otherwise fastened."

But counsel says that "such depositions may have been copies, or they may have been original, and this court ought not to conjecture as to one or the other," etc. Such a supposition can only be indulged on the assumption that the affiant did not mean what he said in the affidavit.

As we understand the learned counsel, his contention is that where plain English has been used there is no way, no means, by which to ascertain what idea is intended to be conveyed.

In short, the logical result of his contention is that human language has been devised for the purpose of concealing our thoughts instead of expressing them. If the phrase, "such depositions," does not mean the original depositions, and does not mean copies thereof, we will be pardoned for indulging an overweening curiosity to know what it does mean. But the learned counsel says it may mean "original depositions" or it may mean copies of such depositions.

We had an idea that it was our duty to determine what it did mean, just as we would determine what any other writing meant by a consideration of the whole context of the affidavit; and, after we had done so, we reached the conclusion that it meant what it said, namely, the "depositions."

We think, after a careful reexamination of the whole affidavit, that the phrase "such depositions" means depositions and not copies.

We concede that the word depositions might be used in such a connection as to refer to copies of depositions, but that could be the case only where the context or the connection in which the word would be used would make such meaning apparent. Not only is no such context pointed out, but the learned counsel earnestly endeavors to prove that the phrase did not mean that, but that it meant neither depositions nor copies thereof, though he is willing to concede that it "may have meant 'copies,' or it may have meant 'originals.'" Who is to determine and when is it to be determined?

The language we have quoted above from the affidavit reads thus: "That on the third page of said original bill of exceptions, as shown by page two of said copy, a space was left for depositions, and such depositions were placed inside of said bill of exceptions at said point, but not otherwise fastened."

Now we had an idea that the words "on the third page" of said bill necessarily meant and implied that it was on paper. We hardly think it fair to assume that it was on blocks of wood, or plates of iron, or on leather or cloth. The imputation, however, that we made a mistake as to what is shown can only be justified by maintaining that the...