Fish v. Hetherington & Berner

61 Ind. App. 645 | Ind. Ct. App. | 1916

Hottel, J.

On December 5,1912, appellee filed its complaint in the Marion Superior Court to recover for material furnished and placed in a theatre building on North Illinois' Street in the city of Indianapolis, and to foreclose a mechanic’s lien on such building and the lot on which it was located. Such proceedings were had that the cause was venued to the Morgan Circuit Court and the issues were there closed, trial had, and a finding returned in favor of appellee. Each of the appellants, except Halstead-Moore Company, filed a separate motion for new trial which was overruled and judgment rendered on the finding. The appellants separately rely upon the following errors for reversal: (1) The complaint of the appellee does not state facts sufficient to constitute a cause of action; (2) the court erred in overruling this appellant’s motion for a new trial.

1. 2. 3. 4. 3. The amendment of §348 Burns 1908, §343 R. S. 1881, makes the first assigned error unavailable. §348 Burns 1914, Acts 1911 p. 415. Pittsburgh, etc., R. Co. v. Farmers Trust, etc., Co. (1915), 183 Ind. 287, 108 N. E. 108; Combs v. Combs (1914), 56 Ind. App. 656, 105 N. E. 944. The second assigned error presents no question for either of two reasons, viz.: (1) Appellants in the preparation of their brief have failed to comply with the rules of the court requiring them to set out “under a separate heading of each error relied on, separately numbered propositions or points.” Cleveland, etc., R. Co. v. Ritchey (1916), 185 Ind. -, 111 N. E. 913; Palmer v. Beal (1915), 60 Ind. App. 208, 110 N. E. 218, and eases cited. (2) The record, although purporting to contain a copy of the judgment, the several motions for a new trial, and the exceptions to the various rulings challenged, is defective in that such judgment, motions and exceptions are not covered by, or included in, the clerk’s certificate to the transcript of the record filed in this court. Appellants’ precipe for such transcript reads as follows: “You will please make out a transcript for appeal to the Appellate Court of Indiana, of the amended complaint, the cross-complaint and all pleadings filed to, or addressed to the amended complaint or cross-complaint or answers. You will please insert in said transcript the original bill of exceptions without copying.” The clerk’s certificate reads as follows: “I, William H. Payne, clerk of the Morgan Circuit Court within and for said county and state, do hereby certify that the above and foregoing transcript contains full, true and entries in said cause required by the above and foregoing precipe, and the original bill of exceptions No. 1 containing •the ' long-hand transcript of the evidence.” The law does not require a written precipe for a transcript in all cases where a complete transcript is desired, but does provide that “Upon the request of the appellant * * * the clerk shall forthwith make out * * * a transcript of the record in the cause, or so much thereof as the appellant, in writing, directs, certified and sealed, to which shall be appended the written directions of the appellant above contemplated, if any.” §690 Burns 1914, §649 R. S. 1881. See also §667 Burns 1914, Acts 1903 p. 338, §7. The clerk’s certificate is so defective that it is questionable whether it is sufficient for any purpose; but, at most, it only purports to certify that such transcript “contains full and true entries in said cause required by the above and foregoing precipe and the original bill of exceptions No. 1 containing the evidence.” Inasmuch as such certificate is limited to the entries called for or required by the precipe, it follows, as a matter of course, that any entry, judgment, motion, or ruling found in the record, but not required by such precipe is not covered by or included in such certificate and must be disregarded. Scott v. Lafayette Gas Co. (1908), 42 Ind. App. 614, 86 N. E. 495; Brown v. Armfield (1900), 155 Ind. 150, 57 N. E. 722; East v. Amburn (1911), 47 Ind. App. 530, 535, 94 N. E. 895, and eases cited; Ewbank’s Manual §§10, 115. It will be observed that such precipe does not call for, or require, a copy of the judgment, the motions for a new trial, the ruling on such motions, or the exceptions thereto, and hence not being properly authenticated must be disregarded. See cases, supra. The record as presented by appellants’ brief showing no available error, the judgment below is affirmed.

Note. — Reported in 112 N. E. 391.