Kesler v. Myers

Buskirk, J. —This was a proceeding for relief from a judg [544] ment by default, under section 99 of the code, as amended by the act, approved March 4th, 1867. 3 Ind. Stat. 373. The facts are these: Myers sued Kesler before a justice of the peace and obtained judgment, from which Kesler appealed to the circuit court. The justice sent up the transcript, and the case was regularly docketed. The subsequent history of the case is shown by the following bill of exceptions in the record: “The State of Indiana, Marion County. Civil Circuit Court, December Term, 1871. “John Myers v. Lewis Kesler. Appeal from John F. Turpin, J. P., Wayne Township. “ Be it remembered that on the 14th day of the September Term, 1871, of this court, being the 3d day of October, 1871, this cause was called for trial, and the defendant, being called, comes not, but makes default, and thereupon his appeal was dismissed. “And on the 2d day of the December Term, 1871, of said court, being the 5th day of December, 1871, the defendant filed his petition for relief from said judgment of dismissal and affidavits in support thereof, to set aside his default herein and to reinstate the cause, which petition and affidavits are in these words: (Heretofore inserted in this record.) “And the court having considered said petition and motion, afterward, on the 12th day of said December Term, 1871, overruled the same and refused to set aside said default and reinstate said cause, to which decision and judgment the defendant excepted, and prays that this, his bill of exceptions, may be made a part of the record in this cause, which is done accordingly. “Signed and dated this 3d day of February, 1872. “John S. Tarkington, [seal.] “Judge M. C. C. C.” The following entry of the clerk below appears in the transcript: “And afterward, to wit, at the December Term, 1871, of said court, on the third judicial day of said term, [545] that being the 6th day of December, 1871, and before the honorable judge aforesaid, the following further proceedings were had in said cause, viz.: Comes the defendant and moves the court to reinstate this cause upon the docket of this court and files the following affidavits, to wit: ” The clerk then copies into the transcript the affidavits of Lewis Kesler, Fabius M. Finch, and Charles Sage. The question presented for our decision is, whether such affidavits are properly in .the record and can be considered by us. It is too well settled to admit of argument or justify a reference to the long and unbroken line of decisions in this court, that the affidavits could only become a part of the record by a bill of exceptions. The real question, therefore, is, have the affidavits been made a part of the bill of exceptions ? This question was very fully considered by us in the recent decision in the case of Stewart v. Rankin, 39 Ind. 161. It is provided by section 343 of the code, 2 G. & H. 209, that “ it shall not be necessary to copy a written instrument, or any documentary evidence into a bill of exceptions; but it shall be sufficient to refer to such evidence, if its appropriate place be designated by the words 'here insert.’ ” In the above cited case, we held, that where the purpose was to incorporate into a bill of exceptions a written instrument or documentary evidence, and such bill referred to such written instrument or documentary evidence, and designated its appropriate place by the words "here insert,” the clerk, in making out the transcript, was authorized and* required to insert in the appropriate place in the bill of exceptions such written instrument or documentary evidence and we further held that where a written instrument properly and legally constituted a part of the record without being made such by a bill of exceptions, and where it had^ already been copied into the transcript, the clerk was; not required to again copy such instrument into the bill of [546] exceptions, but might make the same a part thereof, by-inserting in the designated place a reference to the page and line of the transcript where the same could be found. We further held, it being applicable to that case, though not to this, that where the purpose was to embody into a bill of exceptions the parol testimony, the judge was not authorized to sign such bill of exceptions, until the testimony was written out in full in such bill of exceptions, and he had satisfied himself, either by a personal examination of such testimony or by the consent of opposing counsel, that it spoke the truth; and that if it was not true the judge should correct it or suggest the correction to be made; and that when the bill was made to speak the truth, he should sign it, and not before. Adhering, as we do, to the rulings in that case, we are compelled to hold that the affidavits in the case in judgment do not constitute a part of the record. They did not constitute a part of the record, without being made such by a bill of exceptions. The clerk, therefore, had no right to copy them into the transcript, and they not being properly a part of the transcript, he could not make them a part of the bill of exceptions by referring to the place where they could be found. He should have copied them into the bill of exceptions, where, he says “ (heretofore inserted in the record).” The mistakes of clerks and the want of attention on the part of counsel compel us, in many cases, against our wishes, to dispose of cases on technical points, instead of deciding them on their merits. But an adherence to established rules of practice is essential to the due administration of justice. The affidavits not being in the record, we must presume that the ruling of the court below was correct. Judgment affirmed, with costs.