CONCURRING OPINION I agree with the result reached, but I deem it proper to add that in my opinion the appellants' petition should also be denied for another reason. I think the appellants have failed to make a showing entitling them to relief for reasons other than those mentioned in the majority opinion.
The original exhibits which were introduced in evidence are, or should be, in the custody of the trial court. Unless satisfactory substitutions are made, with the permission of the trial court, by the party desiring to make such substitutions, it will be necessary and proper for the court reporter to incorporate the original exhibits in the transcript of the evidence which he is preparing for insertion in the Bill of Exceptions containing the evidence. Department of Financial Institutions v. Neumann (1940), 217 Ind. 85, 26 N.E.2d 388. I think it is the responsibility of the trial court to see to it that the reporter does so. Indianapolis Life *Page 643 Ins. Co. v. Lundquist (1944), 222 Ind. 359, 53 N.E.2d 338.
Department of Financial Institutions v. Neumann, supra, andSmith, County Auditor v. American Creosoting Company, Inc. (1943), 221 Ind. 613, 50 N.E.2d 915, hold that original exhibits may be incorporated in the Bill of Exceptions containing the evidence but they do not, in my opinion, go so far as to decide that some original exhibits may be incorporated whereas others may not, nor in my opinion does the case of Mitchell, Executor,et al. v. Beissenherz (1922), 192 Ind. 587, 135 N.E. 885, go that far. It seems to me that the court reporter has no authority to decide which original exhibits shall be incorporated and which original exhibits shall not be incorporated. I think it is the reporter's duty to incorporate all of them unless, as above mentioned, substitutions have been made with the permission of the trial court.
I agree it is the responsibility of an appellant to prepare or cause to be prepared his transcript for an appeal to this court in the manner and form which he believes will properly present the questions he seeks to raise, but I also believe this court is empowered to act in aid of its appellate jurisdiction even before the filing of the transcript and assignment of error. We have often done so. I do not read Hill v. Lincoln National Bank andTrust Co. et al. (1938), 214 Ind. 451, 15 N.E.2d 1019, as holding otherwise.
If as it appears, the exhibits are too numerous and bulky for insertion between ordinary covers, I think they can be otherwise properly packaged and identified, indexed and certified so as to merit consideration by this court.
I would prefer to base the decision on the foregoing and also on the ground that appellants' petition does *Page 644 not present a case which calls upon us to act in aid of our appellate jurisdiction.
NOTE. — Reported in 85 N.E.2d 651.