Blair v. Curry

McCabe, J. The appellee sued the appellant in the Union Circuit Court to compel him to produce a certificate of a sheriff’s sale of eighty acres of land in Union county, in order that the sheriff of that county might execute a deed thereon to the appellees, as the sole surviving heirs of the deceased assignee of said certificate. The venue was changed to the Fayette Circuit Court where the issues formed upon the complaint were tried before the Hon. David W. McKee, as special judge, resulting in a special finding on which conclusions of law were stated. Pursuant to the conclusions of law, the court rendered judgment for the plaintiffs. The errors assigned call in question the action of the coqrt in overruling a demurrer to the complaint for want of sufficient facts, the conclusions of law, and in overruling appellant’s motion 'for a new trial. The appellant’s brief points out no objection to the sufficiency of the complaint, and hence, such alleged insufficiency is waived. One of the grounds specified in the motion for a new trial was the action of the trial court in overruling appellant’s motion for a jury trial of the cause. A bill of exceptions shows that a demand was made for a jury trial by the appellant on the ninth judicial day of the May term for 1895, which demand was refused at that time. And such bill shows that the — 101 — cause was tried at the October term for 1895, by thfe court without a jury. But there is no showing in the bill that any demand or request was made at that term for a jury. It is not clear from the other parts of the record but that the trial took place at the May term. If even the other parts of the record made it appear that the trial took place at the May term, the bill of exceptions in contradiction thereof showing that it took place at the October term controls. State v. Flemons, 6 Ind. 279; Carmichael v. Shiel, 21 Ind. 66; Indiana, etc., R. W. Co. v. Adams, 112 Ind. 302. Therefore, at the time this record shows the trial took place, there was no demand or request made that the cause be tried by a jury, or that a jury be impaneled to try the cause. Failure to demand a jury at the time the trial begins is a waiver thereof. Madison, etc., R. R. Co. v. Whiteneck, 8 Ind. 217, 218; Jarboe v. Severin, 112 Ind. 572, 574; 2 Elliott’s Gen’l Prac. 506. We intimate no opinion whether the case was one in which a jury trial was demandable or not. The appellant in his brief points out no valid objection to the conclusions of law. The only objection made to the conclusions of law is stated by appellant’s brief thus: “We think that the conclusion of law upon the facts found was erroneous, for the reason that the court failed to find many of the material facts alleged in the complaint, and introduced in evidence, * * * and * * * failed to find any of the facts set out in the complaint and answer with reference to the ownership of the land under the Blair will.” The exception to the conclusions of law is an admission that the facts have been fully and correctly found. Lockwood v. Dills, 74 Ind. 56; Robinson v. Snyder, 74 Ind. 110; Gregory v. Van Voorst, 85 Ind. 108; Maxwell v. Vaught, 96 Ind. 136; Kinsey v. State, ex. rel., 98 Ind. 351; State, ex rel., v. Emmons, 99 Ind. — 102 — 452; Shoemaker v. Smith, 100 Ind. 40; State, ex rel., v. Crawfordsville, etc., Turnpike Co., 102 Ind. 283; Hedges v. Keller, 104 Ind. 479; Bass v. Elliott, 105 Ind. 517; Kurtz v. Carr, 105 Ind. 574; Burdge v. Bolin, 106 Ind. 175; Lake Erie, etc., R. W. Co. v. Griffin, 107 Ind. 464; Wynn v. Troy, 109 Ind. 250; Center Tp. v. Board, etc., 110 Ind. 579; Gardner v. Case, 111 Ind. 494; Warner v. Sohn, 112 Ind. 213; Neisler v. Harris, 115 Ind. 560; State, ex rel., v. Vogel, 117 Ind. 188; Blair v. Blair, 131 Ind. 194; McCrory v. Little, 136 Ind. 86; Fulh v. Beaver, 136 Ind. 319. If all the facts within the issues that are established by the evidence are not found, or if facts are stated in the special finding not established by the evidence, the remedy is by a motion for a new trial, and not an exception to the conclusions of law or a venire de novo. First Nat’l Bank v. Carter, 89 Ind. 317, 323; Quick v. Brenner, 101 Ind. 230, 235; Beeter v. Sellers, 102 Ind. 458, 460; Hamilton v. Byram, 122 Ind. 283; Lake Shore, etc., R. W. Co. v. Van Auken, 1 Ind. App. 492, 497; Chicago, etc., R. R. Co. v. Barnes, 2 Ind. App. 213, 218. The motion for a new trial assigns as reasons therefor that the finding is contrary to law and the evidence, and is not sustained by sufficient evidence. Not one single reason is stated in appellant’s brief why the finding is contrary to law, or why it is contrary to or not sustained by the evidence, nor is there any attempt to do so in the appellant’s brief. If there was such an attempt sufficient to rescue the case from the well known rule that such failure works a waiver of the alleged error, we could not consider the question, because the formal conclusion of the bill of exceptions instead of showing that the bill contains all the evidence given in the cause, as must be the — 103 — case before we can consider its sufficiency, it shows affirmatively that it does not contain all the evidence in the cause. It shows that the larger part of the. evidence has been omitted, and that evidence was absolutely essential in the cause. This defect is attempted to be obviated by an agreement in writing, signed by the counsel on both sides, to the effect that such omission was caused by the loss of the documents which had been omitted from the bill of exceptions, and to the further effect that the hearing of the cause in the appellate court shall be considered as regular in every respect, and no advantage shall be asked or taken of the fact that said evidence is not copied into the record. There has been no attempt on the part of appellees’ counsel to violate such agreement, if any such was made. But the paper purporting to be such agreement is a collateral paper, and not a part of the record, except made so by a bill of exceptions or order of court. Section 662, Burns’ R. S. 1894 (650, R. S. 1881). There was no bill of exceptions or order of court making the same a part of the record, but it is simply copied into the transcript. That did not make -it a «part of the record. Hence we cannot recognize it as having any force or effect, because not a part of the record. We do not mean to intimate that it would have cured the defect in the bill of exceptions if it had been properly brought into the record. We do not. decide that question. The attempt has been made to obviate this defect in the bill of exceptions by another agreement in writing, signed by the counsel on both sides, and approved by the special judge on February 12, 1896, the original of which is attached to the transcript, and was so attached long after the transcript was filed in this court on December 23, 1895. Such agreement is to the effect that in as — 104 — much as the stenograj>her had found the several documents that had been put in evidence, and subsequently lost, that such stenographer might insert copies of said documents in said record, “the same to be considered by your court without objection on the part of either of us.” Appeals must be tried by the record, and by the record determined. Elliott App. Proc., section 186, and authorities there cited. The agreement mentioned is no part of the record. And, even if it were, it is not competent for parties, by agreement, to change a bill of exceptions or other part of a record after it has been filed in this court, even though the judge below, or the special judge who had tried the case, should approve of such agreement. Such an agreement • would make the record in this court an entirely different record from what it was in the trial , court. That cannot be done. Elliott’s App. Proc., section 188, and authorities there cited. Evans v. Schafer, 38 Ind. 92; Thames, etc., Co. v. Beville, 100 Ind. 309; Blizzard v. Blizzard, 48 Ind. 540. It appears from the transcript that twenty-one pages, purporting to be copies of deeds and a judgment, have been pasted into the bill of exceptions pursuant to the agreement mentioned since the transcript was filed here. The trial judge has certified in his conclusion to the bill of exceptions that these documents are not in the bill. That was the record when the case was at an end in the trial court. Such bill of exceptions imports absolute verity, and cannot be contradicted in this court. Beavers v. State, 58 Ind. 530; Walls v. Anderson, etc., R. R. Co., 60 Ind. 56; Thames, etc., Co. v. Beville, supra. The agreement of the parties cannot make a different record in this court from that which was made in the trial court. Burkan v. McElfresh, 88 Ind. 223; Burdick v. Hunt, — 105 — 43 Ind. 381. The evidence not being in the record, we cannot consider whether the finding is unsupported thereby or not. Judgment affirmed.