On Petition for Rehearing.
Nichols, P. J.Appellant in presenting its petition for rehearing states in its brief that it had, before the opinion of this court was written, made an application to the court for a writ of certiorari, thereby seeking to correct the record and that without ruling upon such application the opinion was written. In this appellant is mistaken. The application referred to by appellant was submitted to the court and after due consideration was denied. In such application appellant prayed that the record “be returned to the clerk of the DeKalb Circuit Court, the official reporter of said court, and the judge of said court to correct the record therein, by attaching to such record and including therein as a part thereof the exhibits introduced as evidence at the time of the trial of the cause.” Appellant by this prayer rightly recognizes the bill of exceptions to be a part of the record of the trial court, and if such record is defective the proper procedure *376is to make application in the court below, and, after correction, to bring the corrected record up by certiorari. Ewbank’s Manual §214.
Appellant earnestly contends that the record could have been returned to the court for the purpose of correction, citing Morgan v. Hays (1883), 91 Ind. 132 and Harris v. Tomlinson (1892), 130 Ind. 426, 30 N. E. 214. Neither of these authorities, however, bears out appellant’s contention; the question in each of said cases being as to the efficacy of nunc pro tunc proceedings in a nisi prius court. They each furnish an example of the correction of a bill of exceptions by application in the trial court. This court has no control over the record of the trial court and the defect is in the record rather than in the transcript. Had the appellant made its application for a correction of the record in that court, then on application the transcript might have been returned to the trial court for use at the hearing, and had the record been changed and corrected, and had appellant thereafter filed in this court an application for a writ of certiorari, a different question would have been presented. Appellant also complains of the failure of this court to consider alleged misconduct of counsel in making statements, for the reason that such statements are not properly presented in the brief, calling our attention to the fact that such statements are twice in the brief, once in the assignment of errors, and again in the motion for a new trial. We do not need to cite authorities to the effect that this presents no question.
The petition for rehearing is denied.