Treesh v. De Veny

• Decision Date: 17 December 1945
• Docket Number: 17409.
• Citation: Treesh v. De Veny, 116 Ind.App. 305, 64 N.E.2d 41 (Ind. App. 1945)
• Parties: TREESH v. DE VENY.
• Court: Indiana Appellate Court

64 N.E.2d 41

116 Ind.App. 305

TREESH v. DE VENY.

No. 17409.

Appellate Court of Indiana, in Banc.

December 17, 1945

Appeal from De Kalb Circuit Court; Wm. P. Endicott, Judge.

Atkinson & Sanders, of Auburn, for appellant.

Mountz & Mountz, of Garrett, for appellee.

DRAPER Judge.

In her complaint the appellee alleged, among other things, that heretofore, in the DeKalb Circuit Court, the Garrett State Bank brought an action to foreclose a mortgage on real estate, in which action the appellant, the appellee and others were parties defendant. That the appellant filed a cross-complaint in the foreclosure action, but that the appellee was not made a party defendant to the cross-complaint, was not served with any summons to appear thereto, and did not so appear. The complaint further alleged that the court made no finding against the appellee on said cross-complaint and rendered no judgment thereon against her, but that the Clerk of the court erroneously entered in the judgment docket a record of a personal judgment against her, and in favor of the appellant in the sum of $582. She demanded that the record so erroneously made, be cancelled and stricken out.

The court found the facts specially, stated conclusions of law thereon, and rendered a judgment which, although not carefully worded, may fairly be construed to extend the relief demanded.

The record discloses that in the court below, the appellant asked and was granted ninety days within which to file all bills of exceptions, but the certificate of the Judge to the bill of exceptions containing the evidence recites that it was presented by the appellee rather than by the appellant and the appellant is not shown to have presented any. The appellee insists that this bill is not in the record because not presented by the appellant. The rules of the Supreme Court, 1943 Revision, do not require a party to obtain time for the filing of bills of exceptions, nor do they require that such bills, to be incorporated in a transcript on appeal, must have been presented and filed by the party appealing. Rule 2-3 provides that: 'Every bill of exceptions tendered prior to the filing of the transcript in the appellate tribunal shall, if correct, be signed by the judge and filed with the clerk, which filing may be evidenced by an order book entry or the clerk's certificate.' The bill of exceptions in this case was certified by the trial court to be full, true and complete, and it was filed with the clerk as evidenced by the clerk's certificate. It is, therefore, a part of the record in this case. The appellant's objection would have been unavailing even before the adoption of the present rules. Benefiel et al. v. Aughe et al., 1884, 93 Ind. 401.

The appellant excepted to each conclusion of law, but assigns error only in the overruling of his motion for new trial. The motion specifies that (1) the decision is not sustained by sufficient evidence and (2) is contrary to law. The question thus presented is stated by Judge Curtis in Central Pharmacal Co. v. Salb, 1939, 106 Ind.App. 495, 13 N.E.2d 875, 879, as follows:

'By the two causes or grounds of the motion for a new trial which are above mentioned, the appellant is entitled, first, to have this court determine whether or not the special finding of fact...