Opinion on Petition for Rehearing.
Per Curiam.— Counsel for appellant, in the petition for a rehearing, ask “the court to grant a rehearing in order to enable the appellant to have his transcript corrected in this, to-wit: that the date of the signing of the appellant’s bill of exceptions by the trial judge is erroneously stated therein as being the 16th day of November, 1894, when it ought to be the 15th of November, 1894, as shown by the affidavits herewith filed.” It is urged that the rehearing be granted so that an order, commonly called a certiorari, may be issued for the amendment of the transcript.
It is-a rule, established by an unbroken line of the decisions of this court, that a rehearing will not be granted in order that a party may correct or perfect the record upon certiorari. Warner v. Campbell, 39 Ind. 409; Pittsburgh, etc., Co. v. Van Houten, 48 Ind. 90; Cole v. Allen, 51 Ind. 122; State, ex rel., v. Terre Haute, etc., R. R. Co., 64 Ind. 297 ; Merrifield v. Weston, 68 Ind. 70 ; Mansur v. Churchman, 84 Ind. *219573 ; State v. Dixon, 97 Ind. 125 ; Board, etc., v. Center Tp., 105 Ind. 422, and cases cited on p. 444 ; Miller Admx., v. Evansville, etc., R. R. Co., 143 Ind. 570; Elliott App. Proced., section 208.
Judge Elliott, in Ms work on App. Proced., at section 208, says: “The rule is well settled that amendments will not be permitted after the decision on appeal. The duty of parties is to see that the record is properly made up, and if they fail to move promptly in securing a correction or amendment, where amendments or corrections are necessary to make a perfect record or fully present the questions, their complaint will not be heeded. It is incumbent upon the party desiring tibie amendment or corrections to take the necessary steps to secure it before .the record is finally acted upon, and he must see that the officers of whom duties are required perform those duties.” It is no excuse for a failure to perform this duty that the attorney-generaFs brief, raising the question that the bill of exceptions was not in the record, was only filed a few days before the decision, and that he did not furnish appellant a copy thereof. It was the duty of appellant and his counsel to examine the transcript and ascertain if the same was correctly prepared, and to take timely steps to correct any errors therein. No excuse for failing to perform tMs duty is shown. Even if the attorney-general had not discovered the infirmity in the record and pointed it out, this court was not required to disregard the same and determine questions not in the record on account of the defective transcript. Miller v. Evansville, etc., R. R. Co., supra.
It will be observed that the petition for a rehearing proceeds upon the theory that the original bill of exceptions, signed by the judge, shows, over his signature, that it was signed by him November 15, 1894, *220and that the clerk in copying said date erroneously wrote it November 16, 1894. What purports to be a bill of exceptions containing the evidence, which we have held was not a part of the record, for the reason that it was never filed in the clerk’s office after it was signed by the judge, is the original instrument signed by the judge, and not a copy. The original instrument is signed by the judge, and over his signature is the statement that it was tendered to him on “the 16th day of November, 1894,” and was signed by him “this November 16, 1894.”
If the judge signed the bill on November, 15, 1894, and the same was filed in the clerk’s office on that day, as claimed by appellant, then the date, November 16, 1894, contained in said original bill over the signature of the judge is a mistake in the record of the court below, and not in the transcript. Such mistakes can only be corrected by the court in which they were made. Elliott App. Proced., section 206.
It is only when a mistake or defect, in the record of the trial court is corrected by said court on a proper application that the transcript of the proceedings in said cause in this court can be corrected by certiorari. It follows, therefore, that even if this cause had not been decided, that no order could issue to the clerk of the court below to correct the transcript concerning the date the bill was signed by the judge until the record was corrected in the court below, on a proper proceeding for that purpose.
The petition is therefore denied.