Montgomery Ward & Company, Inc. v. Thalman et al., 120 Ind. App. 473

ON MOTION TO DISMISS APPEAL Bowen, C. J. The appellees have moved to dismiss this appeal on the grounds that the filing of the bill of exceptions is not properly shown in the record, and that, therefore, appellant’s appeal, as briefed, presents no question. These matters presented in appellees’ motion to dismiss are not jurisdictional, and present no grounds for dismissal, although such propositions might be urged as a ground for affirmance of the judgment. Appellees’ motion to dismiss appeal is, therefore, overruled. Note. — Reported in 88 N. E. 2d 53.

ON PETITION FOR WRIT OF CERTIORARI TO AMEND TRANSCRIPT Draper, C. J. The transcript and assignment of errors in this case were filed in the office of the Clerk of this court on April 23, 1949. The transcript shows, by order book entry under date of April 12, 1949, the approval and filing of a bill of exceptions containing the evidence. The final certificate of the clerk of the Howard Circuit Court is dated April 1, 1949, which date of course precedes that upon which the order book entry appears to have been made.

On June 21, 1949, the appellees filed a motion to dismiss this appeal on the ground that the filing of the bill of exceptions was not properly shown by the record. That motion was overruled with opinion by this court filed October 17, 1949, and appearing in 120 Ind. App. 473, 475, 88 N. E. 2d 53.

On September 2, 1949, the appellant filed in this court its verified petition whereby it seeks' a writ of certiorari, or other order of this court authorizing the correction of the date appearing in the clerk’s certificate, which date is alleged to be erroneous in that, while the certificate appears to have been signed on April 1, 1949, it was, in truth and in fact, signed on April 12, 1949, after the bill of exceptions had been settled by the court and the order book entry above referred to had been made.

This court recognized its right to act in the premises, but was unable to agree on a decision of that petition, and the case was ordered transferred to the Supreme Court. Thereafter, in an opinion filed on the 16th day of December, 1949, and reported in 228 Ind. 486, 89 N. E. 2d 220, the Supreme Court said the question presented by appellant’s petition must be passed upon and decided by this court, and the case was remanded to this court.

This court has now further considered the petition for writ of certiorari or other appropriate relief, the objections to the granting thereof filed by the appellee, and the briefs filed by the parties. By the verified petition and the affidavits in support thereof, which are uncontroverted, it is shown to the satisfaction of this court that whereas the certificate of the clerk of the Howard Circuit Court appears to have been made on April 1, 1949, it was in truth and in fact made on April 12, 1949, after the bill of exceptions was approved and filed and the order book entry was made.

The circumstances out of which the mistake and inadvertence arose are detailed in the said verified petition and supporting affidavits. The appellant’s time for perfecting its appeal expired prior to the date upon which its petition was filed. Appellees base their objections to the granting of it chiefly on the ground that we are without authority to grant it after the expiration of that time. We have seen no authority which we construe as so holding.

We cannot, by writ of certiorari, order the clerk of a Circuit Court to change the date of any certificate he has made, but upon a proper showing of actual error in the date of the clerk’s final certificate, we have the authority to direct the clerk to correct the error, and make his certificate show the true date upon which it was signed. City of Bloomington v. Hancock (1947), 224 Ind. 609, 70 N. E. 2d 631. See also Jackson v. Van Devender (1881), 76 Ind. 27. It is also contended that the appellant should be denied the relief sought because of a lack of diligence in seeking it, regardless of actual time limits.

We think the record exhibits some lack of diligence on the part of the appellant, both in overlooking the error originally and in not sooner filing its application to have it corrected. The situation involves the exercise of a sound discretion on our part, and we have concluded that appellant’s lack of diligence was not so great that we would be justified in denying the relief sought on that ground in this case, thus possibly defeating the ends of justice.

It is therefore the opinion of a majority of this court that the clerk of the Howard Circuit Court should be authorized and directed to change the date in said certificate over his present signature so as to make it speak the truth, and the appellant is granted leave to withdraw the transcript to enable him 'to present it to said clerk for that purpose, same to be done and the transcript returned to the clerk of this court within 15 days after the date of the filing of this opinion. See 3 Am. Jur., Appeal and Error, § 689; Idaho & Oregon Land Co. v. Bradbury (1889), 132 U. S. 509, 33 L. Ed. 433. It is so ordered.

Note. — Reported in 89 N. E. 2d 294.