Perrette v. New Albany & Vincennes Plank Road Co. ( 1915 )

Shea, J.

1. The court below sustained a demurrer to appellant’s amended complaint. This ruling is the only error assigned in this court. It is very earnestly insisted on behalf of appellee that no question is presented because the record does not conform to the praecipe filed by appellant in the court below. The praecipe, omitting the formal parts, reads as follows: “You will please make out and certify a transcript of the following papers and records in the above entitled cause for use on appeal to. the Appellate Court. 1. The amended complaint filed September 21, 1911, and order book entry of filing same. 2. Demurrer to amended complaint and entry showing same. 3. Entry showing the sustaining of demurrer to the amended complaint and judgment. 4. Certificate to transcript.” It will be observed that the praecipe calls for the amended complaint filed September 21,1911, and order book entry of filing same. A writ of certiorari issued from this court on May 27, 1913. On July 18, 1913, the writ was returned. The writ prayed for a correction of the record to show the filing of an amended complaint on September 14, 1911. The order book entry thus made a part of the record reads as follows: ‘ ‘ Comes the plaintiff by Laurent A. Douglass her attorney and files her motion (here insert) praying for an entry nunc pro tunc, correcting the record herein to show the filing by plaintiff on the 14th day of September, 1911, of an amended complaint by inserting in the record herein the word ‘amended’ before the word complaint. And the defendant now appears by Messrs. Kelso & Voigt its attorneys, and this matter is submitted to the court. And the court being satisfied now orders that the clerk do amend the record herein of the 14th day of September, 1911, by inserting in the record therein the word ‘amended’ before the word complaint so as to show the filing of amended complaint. ’ ’ It will be observed that the praecipe calls for an amended complaint filed on September 21, 1911. It will be further observed that the amended complaint in the'record was filed on September 14, 1911. The amended complaint filed on September 21,1911, superseded all complaints' and amended complaints theretofore filed.

2. It has been repeatedly held by both this and the Supreme Court that a party may orally order a complete transcript of the record, but, if he desires only parts of the record, then the parts desired must be designated, and other papers not so designated in the praecipe will not be considered by this court in determining the matters presented for appeal. Workman v. State, ex rel. (1905), 165 Ind. 42, 73 N. E. 917; King v. Hoover (1915), 57 Ind. App. 558, 105 N. E. 172; Roberts v. Smith (1909), 43 Ind. App. 613, 87 N. E. 37; McCaslin v. Advance Mfg. Co. (1900), 155 Ind. 298, 299, 300, 58 N. E. 67; Allen v. Gavin (1892), 130 Ind. 190, 191, 29 N. E. 363.

1. The amended complaint which appears in the record in this case bears date of September 12, 1911, which makes “confusion worse confounded”. This court is not able to say that the amended complaint which thus appears in the record is the amended complaint which the praecipe demanded. Said amended complaint so called for by the praecipe not being presented to this court, no question as to its sufficiency can be considered.

Judgment affirmed.

Note.—Reported in 108 N. E. 128. See, also, under (1) 3 Cyc. 134, 155; (2) 3 Cyc. 101.