150 Ind. 560 | Ind. | 1898
The appellant sued the appellee in a complaint of three paragraphs, to recover for a personal injury to a minor, at the crossing of appellee’s railway by a public highway, caused, as is alleged, by the negligence of appellee.
The appellee filed certain interrogatories to the appellant, which were answered by him. Upon these interrogatories and their answers appellee moved to reject the complaint, on the ground that said complaint was false, and, therefore, a sham pleading, according to section 386, Burns’ R. S. 1894 (383, R. S. 1881). The circuit court sustained said motion, rejected all three paragraphs of the complaint, and afterwards dismissed the cause for want of a complaint. Upon this action of the circuit court, alone, error is assigned here by appellant.
After stating that said motion was sustained, and plaintiff’s exception thereto, the record reads thus: “And it is now ordered by the court that defendant’s motion to dismiss this action, the interrogatories propounded by defendant to plaintiff, and plaintiff’s
The matters sought to be made a part of the record by the order above quoted are manifestly no part of the record, unless made so either by bill of exceptions or order of court. The bill of exceptions is of statutory origin as the order of the court by which matters not a part of the record are' incorporated into it or added thereto. The matters mentioned were not made part of the record by bill of exceptions. So that if they are a part of the record, it must be so because they have been made so by the order mentioned. The above order obviates the defect in the order for which it was held in Russ v. Russ, 142 Ind., at p. 474, that the extrinsic matter there involved had not been brought into the record. The order there was as follows: “And the court having heard said motion, overrules the same, to which ruling of the court, the defendant at the time excepts, and the same is now ordered to be made a part of the record.” It was held there that such order was too indefinite as to the particular matters intended to be incorporated into the record. But there was another defect in the order there, as
It may be objected to this view that it requires as
It has been uniformly held by this court that in case of a skeleton bill of exceptions, even with a direction to (here insert), the clerk cannot make the matter directed to be inserted in such place a part of the record by a reference to such matter elsewhere copied into the transcript, if such matter so elsewhere copied was not there a legitimate part of the record. Douglass v. State, 72 Ind. 385; Kesler v. Myers, 41 Ind. 543; Carver v. Carver, 44 Ind. 265; Kimball v. Loomis, 62 Ind. 201; Colee v. State, 75 Ind. 511; City of New Albany v. Iron Substructure Co., 141 Ind. 500, 504. If a bill of exceptions cannot make such extrinsic matters a part of the record by a mere reference to them between the brackets in the bill where they ought to have been inserted, the reason is much stronger why the order of the court could not do so.
It would be most unreasonable to suppose that the legislature intended in providing two methods of incorporating extrinsic matter into the record, that one should be any less certain than the other as to what is a legitimate part of the record after it is done. It is inconceivable that the legislature intended to leave attorneys free to choose between a loose, slip-shod, and an orderly, certain, and effectual way of making such matters a part of the record.
Therefore the judgment is affirmed.