60 Ind. App. 409 | Ind. Ct. App. | 1916
This cause is before the court on appellant’s petition to make additional assignment of error. The prior history of the proceeding is as follows: The cause was tried below and a verdict rendered in appellee’s favor May 7, 1913, being at the April term, 1913, of the trial court. Judgment was rendered on the verdict from which an appeal was taken to this court, which appeal is now pending. At the November term, 1915, of the trial court, being after the transcript on appeal and appellant’s and appellee’s briefs were filed in this court, appellant petitioned the trial court for an entry nunc pro tunc to show that all instructions given and refused were filed and made part of the record in the trial court. The petition recited an entry to the effect that all instructions given and refused were by the trial court ordered filed. On the basis of an entry in the judge’s bench docket and a file mark alleged to appear on the instructions, appellant asked as relief that an entry be made nunc pro tunc, showing that the instructions were actually filed by order of court. Appellee appeared to the petition in the trial court and resisted the granting of the relief thereby sought, and to that end moved that the petition be dismissed. At a hearing, at which the evidence was exclusively documentary and matter of record, the court sustained appellee’s motion to dismiss the petition, and denied the relief thereby sought. Appellant reserved an exception to the action and ruling of the court, and preserved the exception by filing a bill. Thereupon, on appellant’s application, this court on November 19, 1915, issued a writ of certiorari, directed to the clerk of the trial court commanding him to certify to this court a transcript of the proceedings had on' appellant’s petition, in return to which writ such a transcript has been filed, and .is now before this
Note. — Reported in 110 N. E. 997. See, also, under (1) 3 Cyo 149; (2) 3 C. J. 945, 984, 1334; 2 Cyc 732; (3) 3 C. J. 1399; 2 Cyo 1005.