Brownstown Water & Light Co. v. Hewitt

63 Ind. App. 6 | Ind. Ct. App. | 1916

Moran, J.

The question presented for consideration at this time arises upon appellee’s motion to strike from the files of this court what is designated in the record as an “additional transcript,” and which will hereafter be referred to as such. On January 4, 1916, a transcript and an assignment of error were filed in this court and the record shows the filing of the additional transcript on June 7, 1916.

The judgment appealed from was rendered on June 16, 1915, and on January 3, 1916, pursuant to notice, appellant filed a motion in the lower court to redocket the cause for the purpose, as is stated in the motion, of correcting the finding and judgment, so that the same would be a correct entry, and for a transcript on appeal; and thereafter the motion was granted and t'he correction made in the order book as prayed. All the steps .taken in reference to the filing of the motion, the giving of the notice of its hearing, and the action taken on the part of the court in reference thereto were embodied in a document by the clerk and certified to, and the same was filed in this court under the title of an “additional transcript”; and it purports to be a part of the transcript although no steps were taken by appellants, nor by anyone acting for them, to have the same brought to this court by a writ of certiorari.

“Where a trial court record is corrected or amended upon an application there filed, the amendment or correction becomes part of the original record in legal contemplation, and the party desiring its presentation on appeal should apply for an order to have it certified to the appellate tribunal.” Elliott, App. Proc. §207; Berkey v. Rensberger (1911), 49 Ind. App. 226, 96 N. E. 32. In Mitchell v. Stinson (1881), 80 Ind. 324, the clerk of the lower court certified to the upper court a copy of an original note, and the court said in reference thereto: “We can not treat the note as in the record. The practice here adopted is not warranted by law. Papers can not be made part of the record in any such manner.” After appellants procured a nunc pro tunc entry to be made, it became their duty, if they desired the same to reach this court, under the facts before us, to apply for a writ of certiorari. Elliott, App. Proc. §216; Berkey v. Rensberger, supra; Ewbank’s Manual §209. The motion must be sustained, and the document designated an “additional transcript” is hereby ordered stricken from the files of this court.

Note.—Nunc pro timo entries, when made, note (1) 62 Ind. App. 311. Writ of certiorari, when denied, note, 61 Ind. App. 189.