165 N.E. 560 | Ind. Ct. App. | 1929
On January 4, 1929, we sustained a motion interposed by appellees and dismissed this appeal *18 for want of jurisdiction over them, their said appearance being a limited one. On February 9, 1929, the appellant filed his motion asking that we set aside said order of dismissal, and reinstate this cause upon our docket. With his said motion, and as a part thereof, he filed two affidavits which will be hereafter noticed.
The transcript of the record herein, duly certified, contains the following entry: "And afterwards, to wit, on the 9th. day of July, 1928, the same being in vacation, the following 1. further proceedings were had in the office of the clerk of the Starke Circuit Court, in cause No. 10205, to wit, . ., comes now the defendant by Harry C. Miller, his attorney, and files appeal bond in these words, to wit," etc. The court had theretofore fixed the penalty of the appeal bond and named and approved the sureties thereon, and the bond filed was strictly in conformity to the order of the court so made. On September 8, 1928, the transcript was filed in the office of the clerk of this court. This was one day too late to preserve the term-time appeal, and no notice was ever given or served upon the appellees, as was necessary to perfect a vacation appeal.
The appellant, by the affidavits attached to his said motion to set aside said order of dismissal and reinstate this cause, attempts to contradict the record herein as to the date 2, 3. upon which said appeal bond was filed; this he cannot do; the record, as it stands, imports absolute verity and cannot be thus contradicted. If the entry as to the date upon which bond was filed is, in fact, incorrect, the remedy of the appellant was to have the trial court correct that record, and then, after such correction had been made, bring to this court, by certiorari, the corrected record. We have delayed for some time the ruling on this motion to afford appellant an opportunity to have said record corrected, if it be in fact erroneous, but, after waiting and giving ample *19 time in that behalf, no steps have been taken. The motion to set aside and to reinstate cause is denied.