Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Johnson , 49 Ind. App. 126 ( 1911 )

Hotter J.

This is an appeal from a judgment for $6,000 in favor of appellee, rendered in the Pulaski Circuit Court.

Appellee filed a motion to dismiss the appeal, which, omitting the caption, is as follows: “Comes now the appellee, Carl Johnson, and moves the court to dismiss the appeal, in this cause, for the following reasons, to wit: By the return of the clerk of the Pulaski Circuit Court to the writ of certiorari issued in this cause, it fully appears that the judgment appealed from was rendered on the 8th day of October, 1908, by the Honorable John C. Nye, sole judge of said court, and that judgment was duly entered in Order Book No. 34, on page 402, of the records of the Pulaski Circuit Court, and that the transcript, on appeal in this cause, was not filed with the Clerk of the Appellate Court until December 28th, 1909, one year, two months and eight days after the rendition of final judgment; that the appeal, therefore, is too late and the appellee prays that said appeal be dismissed and for all other proper relief.”

This appeal was taken to the Supreme Court, and the transcript was filed and the appeal perfected in that court on December 28, 1909. The cause was afterwards transferred to this court. While the cause was pending in the Supreme Court, appellee filed his petition for a writ of certiorari. This petition was afterwards granted, and the writ issued. On May 26, 1910, the clerk of the Pulaski Circuit Court filed his return to the writ. On May 31, 1910, appellee filed a motion for an order to modify the original order directing the issuing of the writ. On December 13, 1910, this court, per curiam, overruled said motion, for the following reasons: “We are asked to modify the order heretofore made for certiorari in this cause, but we are of the opinion that the response filed on May 26, 1910, by the clerk of the Pulaski Circuit Court to the certiorari issued herein, sufficiently shows that the judgment in said cause was entered on October 8, 1908, but was not signed by the judge thereof until December 17, 1909. The motion to modify the order heretofore made in this cause for certiorari is therefore overruled.”

The transcript, as originally filed, affirmatively shows the following facts: On October 8, 1908, appellant filed its motion for a new trial. On October 10, 1908, appellant’s motion for a new trial was overruled and exceptions given, and ninety days given in which to file bills of exceptions, and the defendant prayed an appeal to the Appellate-Court, which was granted “upon defendant’s filing bond in the sum of $8,000 with the American Surety Company of New York, as surety thereon, within ninety days.” In vacation, to wit, on December 31, 1908, appellant filed its bond in said sum of $8,000, payable to Carl Johnson [appellee], conditioned as follows:

“The condition of the above obligation is such, that whereas, on October 9, 1908, said Carl Johnson in the Pulaski Circuit Court recovered a judgment against said Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company for the sum of $6,000, in damages and cost of suit, from which said judgment of said Pulaski Circuit Court said Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company appeals to the Supreme Court of Indiana. Now if said Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company shall and will duly prosecute said appeal, and abide by and pay the judgment and costs, which may be rendered or affirmed against it, then the above obligation to be null and void, otherwise to be and remain in full force and virtue in law. Pittsburgh, Cincinnati, Chieago and St. Louis Railway Company, By G-. E. Ross, Solicitor. The American Surety Company of New York, By John F. Brookmeyer, Attorney-in-Faet.”

The return to the order of certiorari discloses that the original transcript incorrectly set out the proceedings of the court had on October 8, 1908, before the Honorable John C. Nye, the then regular judge of said court, in that it omitted the order-book entry of said court of that date, which showed the rendition of the judgment as of that date, and, instead thereof, copied into that day’s proceedings the notes of the judge, made on his “court” or “bench” docket, which notes contained no rendering of judgment. This return also shows that the transcript, as originally filed, incorrectly set out the proceedings of December 17, 1909, before the Honorable Francis J. Vurpillat, the then regular judge of said court, in that such transcript set out as a part of the proceedings of December 17, 1909, the order-book entry of October 8, 1908, showing the rendering of the judgment, thereby transposing the entry of proceedings had before the Honorable John C. Nye on October 8, 1908, when judgment was rendered, and making it a part of the proceedings had before the Honorable Francis J. Vurpillat on December 17, 1909, and showing the rendering of the judgment of that date. This return to the order of certiorari certifies that the entry on page 571 of the transcript originally filed (which the transcript shows to be an entry of the proceedings had on December 17, 1909), contains a copy of the entry of proceedings had on October 8,1908, which is the entry containing the judgment, and the return to said writ of certiorari also shows that no other judgment was ever rendered in the ease. The return to the writ also sets out and .certifies to an entry from the “court” or “bench” docket of said court of proceedings had in said cause on November 15, 1909, showing the filing of a motion in arrest of judgment of that date, which was overruled and exceptions saved by defendant, a prayer for appeal to the Appellate Court, prayer granted upon the filing of a bond in the sum of $10,000 in ten days, with Rufus L. Mayer as surety, the approval of the surety, the filing of the bond and its approval. The return to the writ of certiorari also sets out and certifies to another entry of date of December 2, .1910, being since the filing of this transcript, which we think unnecessary to set out here.

We think we have, in the statement given, set out enough of the contents of the record in this cause, as shown by the transcript in the ease originally filed, and by the return to the order of certiorari, correcting and amending it, to show conclusively that the judgment from which this appeal was taken was rendered on October 8, 1908, in proceedings then had in said cause before the Honorable John C. Nye, the then regular judge of the said court, in which said cause was then pending, and that afterwards, on December 17, 1909, said judgment was signed by the Honorable Francis J. Vurpillat, then the regular judge of said court in which said judgment was before rendered. These being the facts presented by the record, Was the appeal perfected within the time fixed by the statute controlling appeals and fixing the time limit within which they shall be perfected?

1. Section 672 Burns 1908, §633 R. S. 1881, is as follows: “Appeals in all cases hereafter tried must be taken within one year from the time the judgment is rendered. In all cases heretofore tried they must be taken within one year from the time this act takes effect; but the time allowed the appellant by the preexisting law shall not be enlarged. Where the appellant is under legal disabilities at the time the judgment is rendered, he may have his appeal at any time within one year after the disability is removed. ’ ’

An appeal will be deemed to have been taken at the time of the filing of the transcript and assignment of errors in the Supreme Court. Lake Erie, etc., R. Co. v. Watkins (1902), 157 Ind. 600.

The wording of the foregoing statute is plain, and it would seem to be susceptible of but one construction, but we are not without abundant authority in construing it. Moon v. Cline (1895), 11 Ind. App. 460; Wheeler v. Barr (1893), 6 Ind. App. 530; Kinney v. Heuring (1908), 42 Ind. App. 263.

2. In the case of. Reading v. Brown (1898), 19 Ind. App. 90, 91, this court said: “Our Supreme Court has repeatedly held, that when an applicant is not under a legal disability that the record in an appealed cause must be filed in the Appellate Court and errors must be assigned within one year from the rendition of the judgment, and that the time begins to run from the rendition of the judgment and not its entry. Anderson v. Mitchell [1877], 58 Ind. 592; Joyce v. Dickey [1885], 104 Ind. 183; Johnson v. Stephenson [1886], 104 Ind. 368; Bacon v. Withrow [1887], 110 Ind. 94; Lawrence v. Wood [1890], 122 Ind. 452. It follows from what we have said that the motion to dismiss in this cause will have to be sustained.” (Our italics.)

The granting of a motion for new trial would, of course, vacate the judgment, and the filing of such motion within the time allowed for filing it operates to hold the judgment in abeyance. The running of the statute is suspended until the motion for a new trial is ruled upon, and the appeal may be taken under §672, supra, within one year from the time judgment overruling the motion for new trial is rendered. Moon v. Cline, supra; Blacmire v. Barnes (1910), 173 Ind. 657; New York, etc., R. Co. v. Doane (1886), 105 Ind. 92.

In the case of Kinney v. Heuring, supra, the court said: “Appellee moves to dismiss the appeal for the reason that the transcript was not filed within the time fixed by statute. The time for taking appeals under §672 Burns 1908, §633 R. S. 1881, begins to run from the date that the motion for a new trial of the cause is overruled. Joyce v. Dickey (1885), 104 Ind. 183; Moon v. Cline (1895), 11 Ind. App. 460; New York, etc., R. Co. v. Doane (1886), 105 Ind. 92.”

“In legal contemplation, there is no final judgment until the motion for a new trial has been overruled, though the formal judgment on the verdict or finding had been entered previously.” New York, etc., R. Co. v. Doane, supra; Joyce v. Dickey, supra.

In this case, the judgment was rendered October 8, 1908, and the motion for a new trial was filed on the same day, and overruled October 10, 1908.

Rendering the judgment is an act of the court; while making the entry is an act of the clerk of the court. The entry, or entries, of the day’s proceedings are then signed by the judge, before whom the proceedings are had. Anderson v. Mitchell (1877), 58 Ind. 592, 595; Reading v. Brown, supra.

The time within which the appeal begins to run is from the day the judgment is rendered, not from the day the entry is made or signed. Reading v. Brown, supra; Anderson v. Mitchell, supra; Johnson v. Stephenson (1886), 104 Ind. 368; Bacon v. Withrow (1887), 110 Ind. 94; Lawrence v. Wood (1890), 122 Ind. 452.

The fact that the judge who rendered the judgment failed to sign the entry, and that it was afterwards signed by his successor, does not invalidate the judgment. We have a special statute controlling in such cases.

Section 1451 Burns 1908, §1331 R. S. 1881, provides as follows: “In all cases where business of any kind has been or shall be transacted by any circuit or superior judge and put of record, and the judge, from death, resignation, or any other cause, has left or may leave the record of such proceeding or proceedings unsigned, the successor of such judge shall have the same power and authority to sign such record, at any subsequent term of the court, as if such record has been made by such judge.”

3. Parties cannot be heard to say that they are not bound by what has been done by the court, simply because the minutes have not been signed. A judgment rendered but not signed is not void, the failure to sign being but an irregularity. Griffith v. State (1871), 36 Ind. 406; Beitman v. Hopkins (1887), 109 Ind. 177.

4. The clerk of the Pulaski Circuit Court, in his return to the writ of certiorari, brings into the record some entries of the “court” or “bench” docket, among which is an entry showing that on November 15, 1909, a motion was filed in this case in arrest of judgment, the overruling of it, and prayer for appeal. The “court” or “bench” docket is not a record of the court in which its official entries are kept, but is merely a docket for the convenience of the court, in which is kept the data or memoranda, often very meager and incomplete, from which the true and official entries are made. These notes of the judge are not the record entries contemplated by record entries called for, to be incorporated in a transcript for the appeal of the cause, and we think should have no consideration in this ease in determining what the official record entries disclose. However, if this entry, showing the filing of the motion in arrest of judgment and the appeal from the ruling thereon was given full force, it could not avail appellant anything in this appeal.

It has been expressly held by the Supreme Court of this State, that a motion in arrest of judgment, made after a motion for a new trial, and after judgment is rendered does not hold the cause before the trial court and save the appeal. Blaemire v. Barnes, supra.

5. Under the facts disclosed by the record as it now appears in this case, and under the authorities cited, a dismissal of the appeal seems imperative.

Appeal dismissed.