Huntington v. Hamilton v. Hanna, Judge , 118 Ind. App. 88 ( 1946 )

OPINION ON PETITION FOR MANDATE On the 29th day of June, 1946, while this cause was pending in the Hendricks Circuit Court on the appellants' (plaintiffs below) motion for a new trial, said appellants filed, in open court, with the Honorable Horace L. Hanna, judge of said court, their joint and several notice of intention to take certain reserved questions of law on appeal to the Appellate Court of Indiana in the event the court overruled their said motion for a new trial. This notice set out in detail five specific questions of law which arose on the rulings of the court made during the trial and which the appellants proposed to bring into the record by a special bill of exceptions.

Later in the same day the court overruled the appellants' motion for a new trial and entered judgment for the appellee on the jury's verdict herein. On the 22nd day of August, 1946, some 30 days prior to the time limit for filing a transcript in this court, the appellants presented said special bill of exceptions containing said reserved questions of law to the Honorable Horace L. Hanna, judge of said Hendricks Circuit Court, who refused to sign the same as tendered.

Upon petition of the appellants we issued an alternative writ of mandamus commanding said judge to sign or correct and sign said bill of exceptions so tendered or show cause why the same should not be done.

We now have before us the return of the Honorable Horace L. Hanna, as judge of the Hendricks Circuit Court, to said alternative writ and the question is, should a mandatory writ issue ordering said respondent to sign said bill of exceptions as tendered or is his return sufficient to show cause for his refusal to do so?

The appellants herein are seeking to perfect an appeal under the provisions of § 2-3114, Burns' 1946 Replacement, which reads as follows: "Either party may reserve any question of law decided by the court, during the progress of the cause, for the decision of the Supreme Court. Any question of law so reserved may be taken to the Supreme Court upon the bill of exceptions showing the decision, or, if it arises on demurrer, upon the pleadings involved. When the question so reserved is shown by the bill of exceptions, the party excepting shall notify the court that he intends to take the question of law to the Supreme Court upon the bill of exceptions only; and the court shall thereupon cause the bill of exceptions to be so made that it will distinctly and briefly embrace so much of the record of the cause only and the statement of the court as will enable the Supreme Court to apprehend the particular question involved."

The difficulty arises from the following factual situation: The appellants prepared the bill of exceptions in question and concluded that no part of the evidence taken in the cause is necessary to enable this court to determine the questions of law reserved and therefore included no part of such evidence in said bill of exceptions.

The respondent on the other hand insists that the responsibility is his to see that said bill of exceptions shall embrace all of the record necessary to enable this "court to apprehend the particular question involved" and, in his judgment, a complete transcript of all the evidence is vital to a determination thereof. That he has ordered the preparation of such a transcript and when completed he will incorporate it in said bill of exceptions and properly certify the same.

We are not disposed to decide the question of the sufficiency of the tendered bill in that respect in these proceedings which are collateral to this appeal and brought merely in aid 1, 2. of our appellate jurisdiction. If the appellants are satisfied to rest their appeal on the bill of exceptions as tendered and the same speaks the truth as far as it goes we see no logical reason why the respondent should withhold a certificate qualified to that extent. It is said in § 2108 of Watson's Revision of Work's Practice that: "The object of the statute is to enable an appeal to be taken on a partial record in all cases where the question or questions involved can be presented without the expense of taking up the entire record including all the evidence. Its purpose has been to simplify procedure, prevent the encumbering of the record with unnecessary matter, and save to litigants the expense of bringing such unnecessary matter into the record on appeal."

If we conclude, after due hearing, that the partial record that eventually reaches us is insufficient to present the questions reserved, the judgment below will be affirmed. If we conclude otherwise, the questions presented will be decided on their merits.

It is therefore adjudged that the respondent, the Honorable Horace L. Hanna, as judge of the Hendricks Circuit Court, is hereby ordered to sign, or correct and sign the bill of exceptions presented to him on the 22nd day of August, 1946, and limit his certificate of verity to those matters and proceedings which said bill purports to contain.

A certified copy of this opinion, duly served upon the respondent, shall be considered the mandate of the court without special writ.

NOTE. — Reported in 69 N.E.2d 134.