76 Ind. App. 608 | Ind. Ct. App. | 1921
The errors, upon which appellant relies for reversal, depend wholly upon a special finding of facts and conclusions of law.
Appellees contend that no question is presented by the assignment of errors for the reason that no duly authenticated special finding of facts is in the record. The original record filed in this cause shows that the parties at the proper time requested the court to make a special finding of facts and to state its conclusions of law thereon. The cause was submitted to the court for
The next order appears under the date of September 17, 1918, and reads as follows: “Come again the* parties by counsel and the court being advised now here render its conclusions of law upon the special findings of fact heretofore made herein as follows.” Then follows what purports to be two conclusions of law, followed by the statement r “To each of which conclusions of law each of the parties at the time excepts.”
After the transcript was filed in this court, appellant applied for a writ of certiorari which was granted. The return of the clerk to this writ sets out the record
After the condition of the record and failure of the judge to sign the special and supplemental finding and the conclusions of law were called to the attention of the court by appellees, appellant filed its petition in the trial court asking that the judge of that court be required to sign said finding of facts and conclusions of law nunc pro tunc. Appellees appeared to this petition
As said by this court in Walter v. Uhl, Admr. (1891), 3 Ind. App. 219, 28 N. E. 733, “The office of an entry mine pro tunc is to make the record speak the truth with regard to acts already performed, but not recorded. ■ Courts have the power, always, to make their own records conform to what was actually done. But it is not the office of an entry nunc pro tunc to so amend a record as to let it show an act to have been done which was, in fact, not done, although it should have been done.” See also, Lengelsen v. McGregor (1903), 162 Ind. 258, 67 N. E. 524, 70 N. E. 248; Kirby v. Bowland (1879), 69 Ind. 290; Cole Carriage Co. v. Hornbeck (1909), 45 Ind. App. 61, 89 N. E. 379; Bottorff v. Bottorff (1910), 45 Ind. App. 692, 91 N. E. 617.
Appellees’ motion to dismiss appellant’s application for the nunc pro tunc order should have been sustained.
As evidence of its genuineness on appeal a special finding of facts should be signed by the judge or incorporated in a bill of exceptions signed by him or filed and spread on record by order of court. This practice is too well established to be overthrown now. Shane v. Lowry (1874), 48 Ind. 205; Conner v. Town of Marion (1887), 112 Ind. 517, 14 N. E. 488; Ferris v. Udell (1894), 139 Ind. 579, 38 N. E. 180; McCray v. Humes (1888), 116 Ind. 103, 18 N. E. 500.
It will be observed that the record now before us, in so far as the amended and supplemental finding of facts is concerned, is identical with the record in Smith v. Davidson, supra, in that, after such finding had been spread on the record and preceding the signature of the judge, there is an order of the court to the effect that the question as to the conclusions of law was taken under advisement. The signature of the judge does not appear on the record immediately following the record of the special finding.
While the transcript shows that the special finding in this case was spread at length upon the order book, there is no entry showing that it was in fact ever filed or ordered to be filed and made a part of the record.
In applying the law. to the facts, the special finding takes the place of a bill of exceptions containing the evidence. It imports absolute verity, but in order to do so it must measure up to all the requirements of a special finding. It must be authenticated by the signature of the trial judge in manner recognized by law. A special finding when properly authenticated becomes one of the papers in the case, that is, a part of the record. On appeal it needs no further identification than the certificate of the clerk.
The order of the court correcting the record is reversed at appellant’s costs, with directions to sustain appellees’ motion to dismiss appellant’s petition. The judgment of the trial court from which appellant appeals is affirmed.