Opinion
Opinion Superseded 283 N.E.2d 529.
Howard J. DeTrude, Jr., Mark W. Gray, John T. Lornez, Kightlinger, Young, Grays&sHudson, Indianapolis, for appellant.
Scott Ging, Indianapolis, for appellee Jennings.
ON PETITION FOR REHEARING
LOWDERMILK, Judge.
Appellant has filed its petition for rehearing and has assigned as cause therefor certain reasons, including:
(1) The court erroneously disregarded the trial on damages on September 26, 1967, after the trial court had sustained the plaintiff-appellee's motion for summary judgment as to liability, and
(2) In holding that appellant did not timely appeal, the court erroneously holds that a motion for new trial is improper following the trial court's granting of a motion for summary judgment as to liability and trial on damages.
The special judge in this cause, as a part of his findings, says:
'And the Court on the 26th day of September, 1967, having heard evidence on plaintiff-relator's Motion for Summary Judgment against defendant, American States Insurance Company, as to the amount of damages, having granted and sustained plaintiff-relator's Motion for Summary Judgment as against American States Insurance Company as to liability but not as to damages;
'And the Court having heard all of the evidence concerning the amount of damages sustained by plaintiff-relator, Carl E. Jennings, now finds: * * *.'
The court found that Norman A. Bowman and the surety, American States Insurance Company, were liable to plaintiff-relator on the official bond given the State of Indiana by Norman A. Bowman and that the liability of American States was limited to the amount of $6,000, which is the penal sum of said bond and, further:
'That the Motions of plaintiff-relator for Summary Judgment against defendants Norman A. Bowman and American States Insurance Company should be granted.'
On the findings of the court the judgment was entered, whereby the court granted summary judgment against the defendants Bowman and American States Insurance Company and also a judgment against said defendants in the amount of $6,000 with 6% interest from the 26th day of March, 1964, together with 20% damages as provided by law, except, however, the liability of American States Insurance Company shall be limited to the amount of $6,000, and ordered execution against defendant Norman A. Bowman, and to proceed against American States Insurance Company as a surety only when the assets of the said Norman A. Bowman shall have been exhausted.
The law has been so firmly established in this state that after the Supreme Court amended its Rule 2-6 on April 22, 1968, no motion for new trial was appropriate to appeal from a summary judgment that we need not cite any authority thereon. This court admits that evidence was heard on the question of damages on September 26, 1967, according to the record. The findings and judgment of the court, according to the appellant's brief, was entered on September 4, 1969.
Defendant-appellant American States Insurance Company filed its motion for new trial, which was overruled on October 4, 1969.
This case was tried before the adoption of the new Rules, effective on January 1, 1970, and it was proper to file a motion for a new trial since evidence was heard. However, the ruling on the summary judgment and on the evidence as to damages was made on the same day and, as set forth in the original opinion, the motion for new trial was filed too late.
Appellant American States Insurance Company cites in its brief in support of its petition for rehearing that the record on this appeal misstates the date on which the trial court overruled the motion for new trial.
Appellant has, simultaneously with the petition for rehearing, filed an application for writ of certiorari to command the Clerk of the Marion Superior Court to correct the transcript of the record to properly reflect when the motion was overruled.
The brief further states that while preparing this appeal one of appellant's attorneys checked the trial court's record and determined that the motion for new trial was overruled on October 14, 1969. This was represented to this court in the petition for time filed on January 7, 1970, at a time when counsel did not have the transcript, which was the basis of the petition for time.
Appellant American States further shows that once the petition for time was granted, there was no reason for counsel for appellant to notice the error in the record, since no question of timeliness was raised, counsel had personally checked the trial court's actual entry, and counsel was proceeding under the assumption that this court would properly decide the matter on the merits. It is further contended that this appeal has been timely filed since the motion was overruled on October 14, 1969; appellant's petition for time was filed January 7, 1970; and the transcript and assignment of errors was filed on February 26, 1970, within the time properly granted by this court.
This court relies upon the attorneys practicing law before it and the record they present to the court. The last question raised by appellant American States Insurance Company has been covered in our opinion, and is adverse to appellant American States Insurance Company.
It was the appellant's duty to determine that the transcript in this cause was correct when it was filed. The same was not correct and in appellant American States' petition for writ of certiorari, they ask that this court issue the writ to the Clerk of Marion County to correct the record. This could have been done before the case was heard and the opinion handed down, but it is now too late. This court is responsible for its own errors and assumes that responsibility. However, this court is not responsible for the errors of the attorney who does not make sure that his record is correct before it comes into this court. The transcript as filed by appellant revealed, as stated in the opinion, that the summary judgment was entered September 26, 1967, and that after evidence was heard on the question of damages by both parties the matter of further evidence was taken under advisement for the determination of damages, if any.
Then, almost two years later, to-wit, September 4, 1969, the trial court entered its judgment and decree, awarding plaintiff-appellee Jennings damages as hereinabove set out. According to the transcript and appellant's brief, the motion for new trial was overruled on October 4, 1969.
The verity of the transcript cannot be questioned. See Wiltrout's Indiana Practice, Vol. 3, § 2292, p. 134, 'Verity', which states:
'The intrinsic record imports absolute verity for those matters which are properly within the intrinsic record. It may not be contradicted by affidavits, either in the motion for new trial or otherwise.
'* * * Similarly, bills of exceptions import absolute verity as to matters properly contained therein, for the purposes of the appeal in the cause in which the appeal is taken. They cannot be contradicted for the purpose of the appeal by affidavits, or by the clerk of the trial court in a return to a writ of certiorari, or in any other manner. * * *'
And, further, as to the petition for writ of certiorari, Wiltrout's Indiana Practice, Vol. 3, § 2606, p. 327, 'Time Within Which Application Must Be Made', reads as follows:
'Parties who desire the issuance of a writ of certiorari should use reasonable diligence in applying for it, or they waive their right to its issuance.
'Where the appellate tribunal has passed upon the transcript of the record as it came to them, it cannot subsequently be amended. If the transcript was incomplete or incorrect, it is the fault of the parties. It is the duty of the parties to see that the transcript is true and complete as it comes to the appellate tribunal. 'There are many decisions to the effect that a rehearing will not be granted so that the transcript may be corrected. The application must be filed before the case is decided. * * *'
For the reasons given above I would deny petition for rehearing and also deny the petition for writ of certiorari.
HOFFMAN, C. J., and ROBERTSON and STATON, JJ., concur.
ON PETITION FOR REHEARING AND FOR WRIT OF CERTIORARI
SULLIVAN, Presiding Justice.
We respectfully disagree with the opinion written by Judge Lowdermilk which supports the result obtained in this proceeding to deny appellant's petition for writ of certiorari and its petition for rehearing. To state, as do our colleagues here, that the transcript without exception imports absolute verity is to imply if not to say that under no circumstances can a record which has been certified as true and complete be corrected, enlarged or diminished. Such construction is to virtually eliminate the relief specifically and purposely provided by the certiorari procedure.
The heart of the view shared by our four brethren herein, however, rests upon the premise that appellant's petition for certiorari is filed too late since it comes after an opinion by this court upon the merits, and to be sure, the matter quoted from § 2606 of Judge Wiltrout's treatise to that effect has support in many cases decided between 1872 (Warner et al. v. Campbell et al (1872) 39 Ind. 409) and 1950 (Davidson v. Davidson (1950) 120 Ind.App. 253, at 255, 90 N.E.2d 821, 91 N.E.2d 796).
We firmly believe those cases to be in error, however, insofar as they would require dismissal of an appeal by blind and rigid adherence to a rule of procedure which perpetuates and compounds an acknowledged factual inaccuracy. It is our further belief that the precedential value of that line of cases has been destroyed by the most recent decision of our Supreme Court which deals with the question. In Edwards v. State (1968) 250 Ind. 19, 231 N.E.2d 20, 234 N.E.2d 845, the court specifically permitted the record to be amended upon rehearing by writ of certiorari. Additionally, it might be pointed out that no case has been decided in support of Judge Wiltrout's statement of the law since the effective date of the new Rules of Procedure. Such early cases, therefore, may not reflect a proper and current attitude toward judicial review. We believe that the procedural rules now in force dictate disposition of appeals upon their merits wherever possible. See Morrison's Southern Plaza Corp. v. Southern Plaza, Inc. (1969) Ind., 246 N.E.2d 191. More to the point with reference to a correction of the record in order to assure proper determination of an appeal, Rule AP 7.2(C) provides:
'If, on appeal, any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by the trial court and the record made to conform to the truth. If anything material to either party * * * is misstated therein, the trial court shall
'(2) upon the order of the court of appeal pursuant to a properly filed petition for certiorari,
correct the * * * misstatement and if necessary certify and transmit a supplemental record.
'Any court on appeal shall have full power to compel any inferior court * * * to certify to such court a full and complete transcript of the records and proceedings * * * whenever it shall be necessary for the proper determination of any causes or proceeding pending before the court on appeal.'
and Trial Rule 60(A) provides:
'Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the court on appeal, and thereafter while the appeal is pending may be so corrected with leave of the court on appeal.'
While rules of procedure are necessary to provide stability in the conduct of litigation and in appeals therefrom, we should not permit ourselves to be so bound up in the letter of those rules that we lose sight of their spirit. Our function is to serve the truth and to decide legal issues, not clear our dockets by utilization of unnecessarily narrow technical interpretations.
In the matter here considered, appellant's petition for extension of time within which to file its transcript was timely filed on January 7 in consideration of the actual date upon which the trial court overruled appellant's motion for new trial. Quite obviously, as of the date the petition for extension was filed, appellant was not in possession of the record and therefore could not have been aware of any error therein. When the court granted the extension of time, appellant was entitled to rely thereon and to have complete confidence that so long as it filed the record within the time so extended, its appeal would be properly before the court without regard to any scrivener's error which might imply otherwise. The transcript was filed within the time so granted. To renege upon that order extending time and to dismiss this appeal, particularly in full light of the true facts, is to work a grave and unconscionable injustice. See Town of Portgage v. Clifford (1970) Ind., 260 N.E.2d 566.
Appellant filed its Petition for Writ of Certiorari at the first possible opportunity after discovery of the erroneous date stated in the record and Judge Lowdermilk's injustice.1 See Town of Portage v. transcript was not correct as to the crucial date here involved. Further, appellee at no time has herein alleged or contended that the appeal was not timely filed nor that the ruling upon appellant's motion for new trial was made on any date other than on October 14, 1969, all as contended by appellant and as shown by affidavit of the Marion County Clerk, appended to the petition for certiorari.
We would grant appellant's Petition for Certiorari and its Petition for Rehearing.
BUCHANAN, SHARP, and WHITE, JJ., concur.