Connor v. Jones , 115 Ind. App. 660 ( 1945 )

ON PETITION FOR REHEARING. In his petition for a rehearing of this appeal the appellant charges us with error in considering the case of State ex rel. Ernest L. Conner v. Pritchard (1944), ante, p. 55, 54 27. N.E.2d 283, as decisive of the question presented by his third assignment of error, to-wit: The trial court erred in refusing to sign appellant's bill of exceptions No. 3 and order it filed and made a part of the record. Our holding in that respect was to the effect that having decided in the Pritchard case "that the matters set out in bill of exceptions No. 3 could not properly be made a part of the record, we must of necessity hold that the trial court committed no error in refusing to sign same." Notwithstanding appellant's insistence we are unable to see how a trial court can be charged with error in refusing to make certain transactions a part of the record in a cause by way of a bill of exceptions, which transactions constitute no part of the trial of such cause and have no legitimate place therein.

The appellant now seeks to restrict the Pritchard decision to holding that bill of exceptions No. 3 "could not be made a part of the record by a writ of mandamus." In 28. other words, we understand appellant's present position to be that the Pritchard decision, limited to the issues involved, goes no further than to say that mandamus is not the proper remedy to bring a bill of exceptions into the record and that, therefore, the question as to whether the trial court erred in refusing to sign the same and order it made a part of such record, is still open. We do not believe the Pritchard decision can be twisted into any such erroneous holding. Certainly mandamus is a proper remedy if a trial court refuses to do its duty in settling and signing a proper bill of exceptions. The Pritchard case was decided on its merits and the writ was denied because the trial court was right in refusing to bring matters into the record that had no proper place there.

We are next charged with error in holding that, with bill of exceptions No. 3 excluded, there is nothing in the record indicating that the trial court failed to weigh the evidence in passing upon the appellant's motion for a new trial. This contention is predicated upon the theory that, while bill of exceptions No. 3 is not in the record as a bill of exceptions, it is there as a "record document" because the court made an orderbook entry of its refusal to sign the same. Counsel's argument in support of this contention reaches such heights of ingenuity that we quote the same verbatim: "But there is a record here without any bill of exceptions. The court below entered an order on its orderbook setting out its refusal to sign the bill of exceptions. It also recited the fact that the bill of exceptions had been tendered as a bill of exceptions. The entry would be meaningless in the record without something to which it could apply. It states that the court `refuses to sign such bill of exceptions and make it a part of the record.' To obtain a full statement of the record the document tendered as a bill of exceptions and the ruling of the court thereon are necessary. But the document is not a bill of exceptions. It is merely a document with respect to which the court made an order, and the order is a part of the record in the case. The effect of the order is to draw the document tendered as a bill of exceptions into the record not as a bill of exceptions, but merely as a document offered as a bill of exceptions. Upon this state of the record this court has before it exactly what occurred, and . . . cannot be mislead on the question as to whether the trial court failed to weigh the evidence. Just the plain truth is that the trial court refused to weigh the evidence and set out his reasons for not weighing it" in the record document tendered as a bill of exceptions.

The fallacy of this argument becomes apparent when we realize that, if accepted as the expression of a legal principle, any spurious document can be forced into the record by a 29. simple expedient of tendering it as a bill of exceptions and an appellate court compelled to note its contents in passing upon the appeal without any guaranty of its authenticity. For example, a grossly inaccurate transcript of a witness' testimony, unauthenticated by reporter or judge, presented and refused as a bill of exceptions, would become a record document to be considered by an appellate court in determining the question as to the sufficiency of the evidence to sustain a jury's verdict. The unsoundness of the contention and its attendant threat to orderly procedure is too obvious to require further comment and we are constrained to adhere to our original holding that bill of exceptions No. 3 is not a part of the record before us in any manner, shape or form and, there being nothing else to indicate that the trial court failed to weigh the evidence in ruling on appellant's motion for a new trial, we must presume that it performed its duty in that respect.

But the appellant says we are indulging a presumption that is obviously false. If its falsity is apparent it becomes so only through the acceptance and consideration of bill of 30. exceptions No. 3, the contents of which this court has held cannot properly be made a part of the record in this case. It is fundamental that appellate courts must determine appeals upon the basis of the records before them. To do otherwise would destroy all orderly processes of appellate procedure.

Other questions raised by appellant's petition for a rehearing are but the repetition and reinforcement of propositions originally presented to us by briefs and oral argument, and we find no reason to alter our opinion in reference thereto.

Rehearing denied.

Reported in 60 N.E.2d 534.