Tombaugh v. Grogg

• Decision Date: 26 March 1901
• Citation: 59 N.E. 1060,156 Ind. 355
• Parties: TOMBAUGH v. GROGG.
• Court: Indiana Supreme Court

156 Ind. 355

59 N.E. 1060

TOMBAUGH

v.GROGG.

Supreme Court of Indiana.

March 26, 1901.

Appeal from circuit court, Fulton county; A. C. Capron, Judge.

Action by George C. Tombaugh against Benjamin F. Grogg. From a judgment for defendant, plaintiff appeals. Reversed.Nott N. Antrim and Loveland & Loveland, for appellant. M. L. Essick, Frank D. Butler, and Bailey & Cole, for appellee.

HADLEY, J.

Appellant and appellee were candidates for the office of trustee of Perry township, in Miami county, at the November election, 1894. There were counted to each 185 votes. Appellant commenced proper contest proceedings, which by appeal and change of venue reached the Fulton circuit court, where the case was tried, and upon a general finding, supporting the original count, the court gave judgment for the appellee. The question in this appeal is narrowed to two ballots, both of which were cast for appellant, but neither of them counted, upon the ground that they bore distinguishing marks. If either one of these ballots should have been counted, the judgment must be reversed. One of them, known in the record as “29G,” was admitted in evidence. The other, known in the record as “32N,” was excluded.

Appellee insists that the disputed ballots are not properly before this court, for each of three reasons:

First. Because the original thereof, instead of copies, are incorporated in the body of the bill of exceptions containing the evidence. This objection is ruled against appellee by Zeis v. Passwater, 142 Ind. 375, 382, 41 N. E. 796.

Second. It is contended that the bill of exceptions containing the evidence is not made up and certified by the stenographer in conformity to any statute, and that it is insufficient, for failure to show that the stenographer was first sworn to take and make a true and impartial report of all the evidence. It is apparent that an effort has been made to comply with the act of March 8, 1897, in respect to bringing the evidence into the record on appeal. Section 1 of the act referred to (Acts 1897, p. 244) is as follows: “That to make the evidence, and all rulings of the court in respect to the admission and rejection of evidence and the competency of witnesses and the objections and exceptions thereto in any civil or criminal cause a part of the record upon appeal to the supreme or appellate court, it shall be sufficient if the transcript contains the original bill of exceptions embracing all evidence; including that which is oral, documentary and by deposition offered and heard in such cause; and all such rulings, objections and exceptions: provided, however, that it shall appear from the record that such bill was presented to the proper judge of the trial court for settlement and signature within the time permitted by law and that allowed by the court, and that the same was signed by the judge and filed with the clerk of said court or in open court. And it is hereby made the duty of the clerk of any trial court, when requested to do so by the party appealing, to embrace in the transcript such original bill of exceptions instead of a copy thereof.” It should be noted from this statute that the certificate of the stenographer, however good or bad, has not the slightest effect upon the sufficiency or insufficiency of the bill of exceptions. The act of 1897 does not require that the evidence shall be taken and written out and the bill prepared by a stenographer. It may be quite as sufficiently done by an attorney, or by the clerk or the sheriff, for that matter. The things essential to such a bill of exceptions are that it shall appear from the record that such bill contains all the evidence, and was presented to the proper judge for settlement and signature within the time granted by the law or by the court, and that the same was signed by the judge and filed with the clerk, or in open court. Hauger v. Benua, 153 Ind. 642, 646, 53 N. E. 942. These are the only tests of verity and authenticity required by the statute, and it appearing that these three things concurred in season, and before the bill was incorporated into the transcript, and nothing appearing to the contrary, the bill is properly admitted to the record on appeal. Adams v. State (at this term) 59 N. E. 24. We cannot admit as valid the further objection on this point that the clerk had no such request from the appellant as authorized the incorporation of the original bill of exceptions into the transcript, instead of a copy, under the provisions of the act of 1897 above quoted. The request upon the clerk here provided for may be either written or oral, and, conceding all that is claimed by appellee,-that appellant filed a written præcipe with the clerk, directing the making up of the transcript, and which included “the bill of exceptions filed in said cause,” and that this amounts to a written request for a copy of the bill of exceptions, and not the original, it by no means follows that an oral request was not subsequently made to insert the original, and not a copy. We find the original in the transcript. It may lawfully be here if requested by the appealing party, and, in the absence of anything to the contrary, we must presume that the clerk discharged his official duty, and incorporated it upon the subsequent oral request of appellant.

Third. It is asserted that the certificate of the trial judge is insufficient to properly authenticate the bill of exceptions. The introductory part of the bill recites, “Be it remembered,” etc., “that on,” etc., “and before,” etc., “* * * the following evidence was delivered, and the rulings of the court with respect to the admission and rejection of evidence, and the objections and exceptions thereto, were made and taken as noted. * * *” Then follow many pages of questions and answers, interspersed with offers, objections, rulings, and exceptions, at the end of which the trial judge notes over his signature a presentation to him of the above bill of exceptions for settlement “this 27th day of April, 1898,” and then the bill proceeds: “And this was all the evidence given in said cause. And the plaintiff now tenders this his bill of exceptions, and prays that the same may be signed, sealed, and made a part of the record, which is done this 27th day of April, 1898. A. C. Capron, Judge Fulton Circuit Court.” Appellee contends that the authentication of the bill is inadequate, for failure of the judge to certify that it contains all the objections, rulings, and exceptions reserved during the trial. We...