Wood v. The Ohio Falls Car Company

• Decision Date: 02 February 1894
• Docket Number: 16,587
• Parties: Wood v. The Ohio Falls Car Company
• Court: Indiana Supreme Court

36 N.E. 282

136 Ind. 598

Wood v. The Ohio Falls Car Company

No. 16,587

Supreme Court of Indiana

February 2, 1894

From the Floyd Circuit Court.

Judgment is affirmed.

J. K Marsh, for appellant.

M. Z Stannard, for appellee.

OPINION

McCabe, J.

This was a suit brought by the appellant against the appellee, in the Clark Circuit Court, to recover damages for an alleged personal injury sustained by him through the alleged negligence of the appellee.

The cause was taken, on a change of venue, to the Floyd Circuit Court, where a trial by jury resulted in a verdict for the appellee, whereon it had judgment.

The only error assigned is the action of the trial court in overruling appellant's motion for a new trial. The reasons assigned in the motion for a new trial are such as require a bill of exceptions to present them to this court for review. They are, that the trial court erred in giving certain instructions to the jury, and that the verdict is not supported by the evidence, and is contrary to law.

The first question with which we are confronted is made by the appellee's contention that the bill of exceptions is not in the record.

The trial commenced on the 29th day of May, 1891, and ended on the 1st day of June, 1891, before the Hon. George V. Howk, who was the judge of the Floyd Circuit Court. The motion for a new trial was filed and overruled on the 16th day of June, 1891, and sixty days' time was allowed the appellant in which to prepare and file a bill of exceptions. The bill of exceptions was filed on the 5th day of May, 1892, nearly one year after the date of the trial, and more than eight months after the expiration of the sixty days allowed.

The only part of the bill of exceptions that contains any statement when it was presented to the judge for his approval and signature is the concluding clause thereof, which reads thus:

"And the plaintiff now presents and tenders this, his bill of exceptions, this day of August, 1891, and asks that the same may be signed and sealed and made a part of the record of this cause, which is now here done, and signed and sealed accordingly, this day of August, 1891, and within the time allowed by the court therefor.

Judge."

The following indorsement was found on the bill somewhere, but not in the body of the bill, to wit:

"Presented August 6, 1891.

"Geore V. Howk, Judge."

At the close of the bill, and after the above concluding clause, appears the following:

"Hon. George V. Howk, whose genuine signature appears to the foregoing date of presentation of this bill of exceptions, having departed this life on the 12th day of January, 1892, and I, George B. Cardwill, having been duly commissioned and qualified as, and being now, the judge of the Floyd Circuit Court, as his successor in office, do now sign said bill of exceptions, this 5th day of May, 1892.

George B. Cardwill, "Judge of Floyd Circuit Court."

The statute provides that "The party objecting must, within such time as may be allowed, present to the judge a proper bill of exceptions, * * * delay of the judge in signing and filing the same shall not deprive the party objecting of the benefit thereof. The date of presentation shall be stated in the bill of exceptions, and the entry shall show the time granted, if beyond the term, for presenting the same." 1 Burns' Rev. 1894, section 641.

In Rigler v. Rigler, 120 Ind. 431, 22 N.E. 776, Mitchell, J., speaking for the court of this statute, said: "Our statute * * is imperative upon two points: 1. The party 'must, within such time as may be allowed, present to the judge a a proper bill of exceptions.' 2. 'The date of the presentation shall be stated in the bill of exceptions.' * * A bill of exceptions does not become a part of the record unless it has been presented to the judge within the time limited, and the date of the presentation stated in the bill."

In Orton v. Tilden, 110 Ind. 131, 10 N.E. 936 (139), Howk, J., delivering the opinion of the court as to the same statute, said: "It is no compliance with the provisions of this section of the statute to recite that within the time allowed, the defendants presented their bill of exceptions. But the exact date of the presentation must be stated, not in the margin nor on the back of the bill, but in the bill itself, so that it may be seen by this court whether or not the date of the presentation was...