Chicago & Indiana Coal Railway Co. v. McDaniel

On Petition fob, a Reheaeing.

Olds, J.

A petition for a rehearing is filed in this case vigorously protesting against the decision as rendered.

In the opinion disposing of the question as to the misconduct of the jury we said: “The decision of Houk v. Allen, 126 Ind. 568, is decisive of this question. This fact counsel for appellee admit.” Counsel seriously object to the statement as to the admission. The statement is immaterial to the opinion and was made in view of the fact that counsel for appellee had filed four separate briefs in the case, and three of them were devoted almost exclusively to an attack upon the decision in the case of Houk v. Allen, supra, insisting that it was not sound in reason, and was a departure from the rule as declared by this court in earlier cases, and that it should be overruled, which is regarded as clearly ah implied admission that the case was decisive of the question and must be overruled in order to avoid a reversal of the judgment in this case, and for the further reason that the decision in that case so clearly and fully decided the question presented in this, that it would challenge one’s intelligence to say they denied it, but upon reexamination of counsel’s brief we see they do not explicitly admit it.

We are still inclined to adhere to the decision in Houk v. Allen, supra, and to hold that it is decisive of the question presented in this case in relation to the misconduct of the jury.

Counsel insist that we did not notice all of the objections urged to the decision in the case of Houk v. Allen, supra, *179and the reasons why this judgment should not be reversed. It is true we did not discuss all of them, for the reason that we regarded them untenable and deemed it unnecessary to discuss them. There is one, however, that we will here consider, the others we deem it unnecessary to discuss.

It is insisted that the question presented in relation to the misconduct of the jury can not be considered, for the reason that the bill of exceptions fails to show that the affidavit of Mr. Spooner was all the evidence introduced on the issue raised.

It is a well settled rule that a general bill of exceptions purporting to contain the evidence introduced upon the trial of a case for the purpose of presenting a question upon the evidence, or in which it is necessary to have all of the evidence before this court to properly present the question, that the bill of exceptions shall contain the words, “This was all the evidence given in the cause.” This universal holding of this court was originally based upon rule 30 adopted by this court in its early history, providing that “In every bill of exceptions purporting to set out the evidence upon motion for a new trial overruled, the words, ‘This was all the evidence given in the cause, ’ are to be regarded as technical, and indispensable to repel the presumption of other evidence.”

As the rule itself clearly indicates, it applies to evidence given in the trial of the cause, and not to collateral matters such as affidavits filed in support of motions.

The rule has never been applied to bills of exceptions other than general bills of exceptions purporting to contain the evidence given on the trial of the cause, and it has not, and was not intended to have, any other application. The reason of the rule does not apply in any other class of cases.

The evidence given on the trial is in a large degree *180oral testimony, and the only way it can be preserved and brought before this court is by bill of exceptions. Proof in support of motions and rulings of the court is usually brief, and in the shape of affidavits, though it may be otherwise.

Special bills of exceptions are to preserve the facts upon which the court acted. It is the duty of the court, when a bill of exceptions is presented to be signed showing a ruling, to see that it contains all of the facts upon which the ruling is based before signing it.

When a bill of exceptions shows the filing of a motion, an affidavit in support of it, setting out the affidavit and the ruling upon it, and nothing appears of record indi eating that someting is omitted from the bill showing the facts upon which the court acted, it will be taken as a verity, and this court will presume, that it speaks the truth and the whole truth; that the court discharged its duty, and required the bill to state all the facts upon which the ruling was had.

This court will not presume, as against a bill of exceptions preserving the ruling of the court, that it is incomplete, and does not present the whole facts upon which the court that signed it acted. By the bill of exceptions, the court has said that it made the ruling on the facts stated in the bill.

We are cited by counsel in support of his position to Thornton on Juries, in which a statement is made based upon the decision in Shular v. State, 105 Ind. 289.

We have examined the decision in that case and it does not sustain the contention of counsel. In that case the bill of exceptions affirmatively showed that there was a hearing upon the question, several days having been occupied in the taking of testimony which was omitted from the record. That presents an entirely different question from a bill in which no such omission is shown. In that *181case the bill of exceptions showed affirmatively that the record was incomplete; in this case it does not.

Filed March 11, 1893; petition for a rehearing overruled Apr. 18,1893.

The bill of exceptions is to be taken by an appellate tribunal as an affirmative declaration that it contains the' facts upon which the ruling was made; for such is the object and purpose of the bill, and it is the duty of the court signing it to have it contain all the facts, and it will be presumed to do so. If any evidence is omitted, it fails to show the facts upon which the ruling was made. The only exception to this rule being in the case of a general bill containing all the evidence given on the trial of the cause, in which it is necessary to state that it contains all the evidence given in the trial of the cause. The authorities seem to be uniform in their holdings, and support the propositions we have stated. In our search, we have been unable to find any holding a contrary rule. See Elliott’s App. Proced., section 797 to 726, inclusive, and authorities there cited; Am. & Eng. Encyc. of Law, vol. 2, title, Bills of Exceptions, pp. 218, 219 and 220, and authorities there cited.

The presumption is in favor of the court having discharged its duty in requiring the bill to show the facts upon which the ruling was made before the bill was signed, as well as in favor of the correctness of the ruling.

Both the general and the special bills of exceptions in this case show that the appellant filed the affidavit of Mr. 'Spooner in support of the second reason for a new trial, and in no way indicate that any other evidence was offered in relation to the motion, and the affidavit is set out at length in each bill, and the record shows the overruling of the motion.

The question is properly before this court for decision.

The petition for a rehearing is overruled.

McCabe, J., took no part in the decision of this case'.