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HART, State Auditor, v. STATE ex rel. HITE
et al.1

(Supreme Court of Indiana. Oct. 10, 1902.)
APPEAL-RECORD-CERTIORARI-MANDAMUS
-COMPLAINT-SUFFICIENCY-APPRO-
PRIATIONS-REQUISITES.

1. The summons in a proceeding for mandamus, which is eliminated from the record by respondent's appearance and answer to the merits, cannot be restored by certiorari, so as to enable the court on appeal to review the decision of the trial court overruling the motion to quash the summons.

2. The complaint in mandamus to compel the state auditor to audit a judgment for refunding taxes wrongfully assessed, which alleges that the judgment adjudged that the board of commissioners of a designated county should cause the county auditor to issue a certificate in favor of the relators for a fixed sum on the state auditor, and that in pursuance thereof such certificate was issued, together with a certified copy of the judgment, cannot be assailed for uncertainty and insufficiency for the first time on appeal, it being sufficient, within Burns' Rev. St. 1901, $7916, making it the duty of the board of commissioners to certify to the state auditor the amount proven to have been wrongfully paid, to form the basis of an amendment that might have been made below if presented in time.

3. Burns' Rev. St. 1901, § 7916, requiring the state auditor to audit claims for refunding taxes wrongfully assessed as claims against the treasury, and providing that the treasurer shall "pay the same out of any money not otherwise appropriated," makes an appropriation for the payment of such claims, a specific appropriation therefor being unnecessary.

Appeal from circuit court, Marion county; Henry Clay Allen, Judge.

Application by the state, on the relation of Margaret Hite and others, against William H. Hart, auditor of state, to compel respondent to audit a judgment and issue his warrant therefor. From a judgment for relators, respondent appeals. Affirmed.

Wm. L. Taylor, Atty. Gen., Rowland Evans, Merrill Moores, and C. C. Hadley, for appellant. W. S. Sherley, for appellees.

HADLEY, J. Appellees, as relators, filed in the Marion circuit court their verified petition, reciting that they had previously recovered in the Morgan circuit court, on appeal from the board of commissioners of Morgan county, a judgment in their favor, as stockholders of the First National Bank of Martinsville, for taxes wrongfully assessed against their shares; that of said judgment $106 was for state taxes, which had been collected by the treasurer of Morgan county for the state, and by him paid into the state treasury, where the same remained; that pursuant to the terms of said judgment the auditor of Morgan county had issued to relators a certificate calling for $106, and addressed to the auditor of state, which certificate the relators had presented to appellant, and demanded of him that he audit said judgment and claim, and issue to relators his warrant upon the treasurer of state for the payment thereof. Refusal by appellant and

2. See Appeal and Error, vol. 2, Cent. Dig. §§ 1226, 1228.

1 Superseded by opinion, 67 N. E. 996.

*

funds in the state treasury are alleged. Prayer for a writ of mandate against appellant "to show cause why he shall not be compelled to audit said claim and judgment and issue his warrant therefor." On November 2d, appellant, appearing specially, and solely for the purpose of the motion, moved the court to quash the summons issued and served upon him, because said summons is insufficient in law to require the respondent to answer thereto. The motion to quash was overruled, and appellant ruled to answer; whereupon appellant filed an answer to the merits, to which appellee's demurrer was sustained, and, appellant electing to stand by his answer, judgment was rendered against him, and he appeals. The assignments count upon error of the court in overruling appellant's motion to quash the summons, the insufficiency of the complaint, and in sustaining the demurrer to his answer.

Appellant brings to this court by a writ of certiorari what purports to be a copy of an ordinary summons. Such a writ is wholly foreign to an action for mandamus, and amounts to nothing as legal process. Under section 662, Burns' Rev. St. 1901, where a sole defendant appears, and files an answer to the merits, as in this case, the summons is thereby eliminated from the record; and this court has held that such summons can only be restored to the record by a bill of exceptions. Cincinnati, H. & D. R. Co. v. Heim, 97 Ind. 525; Cincinnati, H. & D. R. Co. v. Street, 50 Ind. 225. An alternative or peremptory writ, which constitutes the only proper initial process in mandamus, is in a large sense a summons; and, while the bill of exceptions before us shows appellant's special appearance, his motion to quash "the summons," the overruling of the motion, and exception thereto, it contains no copy of the summons complained of, and leaves this court wholly without information as to the real nature of the writ. This court has held that an alternative writ is in the nature of a complaint, and it may doubtless, therefore, be set out in the transcript as a part of the record, without a bill of exceptions. But here neither the transcript nor the bill of exceptions exhibits an alternative writ. Yet the calling of the process a summons does not necessarily mean an ordinary summons, and, while it appears from the whole record that the defendant was brought in by some sort of preliminary process, we must presume, in favor of the action of the court that assumed jurisdiction, that the missing process was such as the law sanctions. The complaint is here assailed for the first time. It is averred in the petition that "it was further adjudged in said cause [i. e., in the Morgan circuit court] that the board of commissioners of Morgan county shall cause the auditor of said Morgan county to issue a certificate in favor of said relators for the said sum of $106 upon the auditor of state of Indiana; that in pursuance thereof the said auditor of Morgan county did issue

a certificate in favor of the relators upon the auditor of the state of Indiana for said sum, as evidenced by said judgment, together with a certified copy of said judgment." Section 7916, Burns' Rev. St. 1901, provides that "it shall be the duty of the board of commissioners to certify to the auditor of state the amount so proven to have been wrongfully paid under the seal of said board of commissioners."

It is objected that the averments of the petition concerning the certificate are vague, uncertain, and insufficient. We said in City of South Bend v. Turner, 156 Ind. 421, 60 N. E. 272, 54 L. R. A. 396, 83 Am. St. Rep. 200: "The total absence from the complaint of any averment of some fact or facts essential to the existence of the cause of action, or the presence of some averment that absolutely destroys the plaintiff's right of recovery, may be for the first time raised in this court by an independent assignment of error under section 346 of the Code (Burns' Rev. St. 1901); but mere uncertainty or inadequacy of averment, such as might have been amended and cured upon motion seasonably made, will be deemed to have been waived by a defendant who proceeds with the trial to final judgment without objection." See authorities there cited. What is alleged in the complaint, though informal, is sufficient to form the basis of an amendment that might have been made, if timely presented. But after finding and judgment the uncertainty as to the nature of the certificate will be deemed to have been waived.

The demurrer to the answer was properly sustained. It was not necessary to the payment of appellees' claim that there should first be a specific appropriation by the legislature for its payment. The general assembly has spoken concerning such claims in plain language, as follows: "And the auditor of state shall thereupon audit the same as a claim against the treasury, and the treasurer of state shall pay the same out of any money not otherwise appropriated." Section 7916, supra.

Judgment affirmed.

(159 Ind. 271)

JOHNSON v. GEHBAUER. (Supreme Court of Indiana. Oct. 10, 1902.) BILL OF EXCEPTIONS-FILING-EXTENSION OF TIME LEGISLATIVE CONTROL CONSTITUTIONALITY-MUTILATION OF RECORDS-MASTER AND SERVANT-DEFECTIVE MACHINERY-EMPLOYER'S KNOWLEDGE REASONABLE CARE-COMPLAINT-ALLEGATIONS-VER

DICT-SPECIAL INTERROGATORIES-INSTRUCTIONS-HARMLESS ERROR.

1. Acts 1901, p. 511, provided that, where an attempt had been made to make the evidence a part of the record on appeal by filing a bill of exceptions in accordance with Acts 1899, p. 384 (which was subsequently held unconstitutional), the court before which the case was determined Light extend the time for filing a bill, which should become a part of the record as though filed within the time originally fixed, and that the longhand manuscript of the reporter might be taken from the bill originally

filed, and embodied in such subsequent bill. Held, that since the act consisted of an attempt by the legislature to exercise control over the records of the court, and perform the judicial act of extending the time for filing bills of exceptions in cases pending on appeal in the supreme and appellate courts, it was in violation of Const. art. 3, § 1, providing for the exclusive character of the three departments of government.

2. Since the right of the prevailing party to insist that the bill of exceptions be filed within the time originally fixed by the court is a valuable vested right arising under the judgment (a contract of record), the act is in conflict with Const. art. 1, § 24, prohibiting the passage of any law in violation of contracts.

3. Appellant, acting under the supposed authority of the act of 1899 and the act of 1901, in good faith, and under the advice of counsel, made the substitution provided for in the act of 1901, and in so doing withdrew from the record the longhand manuscript of the shorthand reporter. Held that, though the bill of exceptions failed to bring the evidence before the court, the court would not, because of appellant's mutilation of the record, refuse to consider other questions presented by the appeal.

4. A servant working at an excelsior machine was injured without fault on his part by reason of a defect in the machinery unknown to him, but known to his employer, before the accident, and which might have been repaired. Held, that he was entitled to recover against such employer.

5. A complaint alleged that one defendant was engaged in the manufacture of wood hair, that another defendant was the manager and proprietor of such business, and that the second defendant employed plaintiff. Held that, the allegation being sufficient to admit evidence that the second defendant was operating the works on his own account, a verdict holding him to a master's responsibility to plaintiff for personal injuries would not be disturbed, in the absence from the record of the evidence.

6. Though answers of a jury to special interrogatories tend to sustain appellant's theory, yet, none of them being irreconcilable with the adverse general verdict, such verdict will not be disturbed therefor.

7. A complaint alleged that plaintiff had no knowledge of a defect in a machine whereby he was injured. The jury were instructed in one charge that it was necessary for plaintiff's recovery that he prove that he received injuries "as stated in the complaint." In another instruction the necessity of ignorance of the defect by the plaintiff was fully set out. Held, that any omission in the first charge as to plaintiff's ignorance was fully supplied by the subsequent one.

8. An instruction that it is the duty of the employer to provide reasonably safe machinery, and that an employé may recover if, without his fault, etc., he sustains injuries from the employer's failure to "use reasonable care and diligence" in the discharge of such duty, sufficiently sets out that it is "reasonable" care which is required in providing such machinery.

9. The failure of an instruction to include all conditions under which recovery cannot be had for a personal injury does not render it objectionable.

10. A complaint alleged that defendant (an employer) had knowledge that certain machinery was out of repair, etc. Held, that an instruction stating that the complaint alleged that the defendant knew, "or ought to have known," of such defect, did not go beyond the allegations of the complaint, since an allegation of knowledge includes constructive knowledge.

Appeal from circuit court, Hamilton county; John F. Neal, Judge.

Action by John Gehbauer against Jesse B. Johnson. From a judgment in favor of plain

tiff, defendant Jesse B. Johnson appeals. Transferred from appellate court under Act March 12, 1901, § 8. Affirmed.

Miller, Elam & Fesler, for appellant, Christian & Christian, W. S. Doan, and W. J. Beckett, for appellee.

An

DOWLING, C. J. On May 11, 1900, John Gehbauer, who was the plaintiff below, recovered a judgment against the appellant, Johnson, for damages for a personal injury. After motions for judgment on the answers to interrogatories and for a new trial had been overruled, 90 days from May 11, 1900, were granted the defendant in which to prepare and file his bill of exceptions. Conformably to the provisions of the act of March 3, 1899 (Acts 1899, p. 384), a bill was filed by the stenographer who reported the evidence, and after such filing the bill was signed by the judge before whom the cause was tried. appeal was taken by the defendant below, and a transcript containing the bill of exceptions so filed and signed was lodged in the appellate court. Afterwards, this court having decided in Adams v. State, 156 Ind. 596, 599, 59 N. E. 24, that section 6 of the act of March 3, 1899, was unconstitutional, the appellant, on April 13, 1901, over the objection of the appellee, obtained an order of the Hamilton circuit court, where the cause had been tried, extending the time for filing the bill of exceptions in said cause until May 1, 1901. In pursuance of this order, a second bill was prepared, and, after it was signed by the judge, it was filed in the office of the clerk of the Hamilton circuit court April 25, 1901. By the direction of the appellant the bill originally filed and incorporated in the transcript on this appeal was detached and removed from the records of this court, to which the cause had been transferred, without its leave. and the bill filed April 25, 1901, was substituted. The proceedings of the Hamilton circuit court upon the petition of the defendant below, under the act of 1901, for an extension of time to file the substituted bill of exceptions, are made a part of the record in this court. In making the order of April 13, 1901, the Hamilton circuit court acted upon the authority of an act of the general assembly of this state approved March 11, 1901 (Acts 1901, p. 511), giving to trial courts in certain cases the power to extend the time for filing bills of exceptions. The appellee moves to strike the transcript from the files, and to dismiss this appeal, because of the unauthorized alteration of the record by the removal of the original bill of exceptions and the substitution of the bill of April 25, 1901.

The action of the appellant, in procuring from the trial court an order extending the time for filing a bill of exceptions, and in causing such new bill to be attached to the transcript, some eight months after the transcript had been filed in the appellate court, was taken in pursuance of said act of 1901,

supra. That act provided that, where an attempt had been made to make the evidence a part of the record by a bill of exceptions, prepared in pursuance of the act of 1899, supra, which had been held unconstitutional, the court or judge before which the case was determined might, upon proper application by the party desiring to appeal, by order, extend the time for tendering the bill of exceptions for a sufficient length of time to enable such party to prepare and tender such bill, which, upon being signed and filed. should become a part of the record to the same extent and in the same manner as if tendered and filed within the time originally fixed. The act further provided for the withdrawal from the transcript previously filed in the supreme or appellate court, in any case then pending on appeal, of the longhand manuscript of the reporter, its delivery to the party prosecuting the appeal for the signature of the judge, its proper authentication, and its incorporation in the transcript as a part of the record. Counsel for appellee contend that the act of 1901, supra, is unconstitutional and void. On the other hand, it is insisted on behalf of the appellant that the act is remedial and beneficent in its scope and purpose, and that it conflicts with no provision of the organic law of the state. The records of a court are subject to its own control, and when ju risdiction has attached they may not be diminished or altered without the consent of the court in which the cause is pending, excepting only where such change is directed by some superior or appellate court, authorized by law to make such order. This freedom from interference or control by other departments of the government is essential to the independence of the judicial branch thereof. The legislature has no more authority to alter the records of a court than has a court to change the journal of legislative proceedings. Such exclusive control over its records is an important function of the judicial authority, and it cannot be exercised either by the legislative or the executive department of the state. Const. art. 3, § 1. Where a transcript is filed in the proper court upon appeal, and when notice is given to the appellee, if necessary, the jurisdiction of the court to which the appeal is taken is complete, and the transcript becomes a record of that court. Such record cannot be removed, altered, or amended without the leave of the court in which the appeal is pending, and any addition to or diminution of the record without the leave of the court is a mere mutilation or interpolation, having no legal efficacy, and affording no foundation for relief or redress to the party perpetrating it. Great as is the power of the legislature, it does not enable that department of the government to come into the courts after their records are made up, and alter, add to, or destroy them. On this ground alone, which we regard as amply sufficient, the act in question might be held unconstitutional.

But for another and equally cogent reason we are constrained to decide against the validity of this act. It is clearly in conflict with that provision of the state constitution which prohibits the passage of any law impairing the obligation of contracts. Const. art. 1, § 24. A judgment is a contract of record, and its obligation is impaired whenever the observance of those forms and rules of procedure in force when it was obtained, and by which it is protected and sustained, are annulled or set aside. In the present case the rights of the parties under the judgment were fixed by the law as it stood when the final adjournment of the Hamilton circuit court took place. The right to require that the bill of exceptions should be settled by the judge, signed by him, and filed in the office of the clerk of the court, after such signing, within the term, or within such time beyond the term as the court, before the expiration of the term, should appoint, to make it sufficient and effective to bring the evidence into the record, was a valuable vested right of the plaintiff below. His rights in this behalf, as well as the measure of those of the defendant, were established by the order of the court requiring the bill to be tendered and filed within 90 days from May 11, 1900. This right having vested, it could not be impaired or destroyed by a further order, made after the term at which the judgment was rendered. If the party appealing failed to tender his bill within 90 days after May 11, 1900, his right to tender such bill was irrevocably lost, and neither the trial court nor the legislature could restore it by depriving the other party of the legal consequences of such failure. Mr. Justice Gray, in Bank v. Eldred, 143 U. S. 293, 298, 12 Sup. Ct. 452, 36 L. Ed. 162, states the law thus: "By the uniform course of decision, no exceptions to rulings at a trial can be considered by this court, unless they were taken at the trial, and were also embodied in a formal bill of exceptions presented to the judge at the same term, or within a further time allowed by order entered at that term, or by standing rule of court, or by consent of parties; and, save under very extraordinary circumstances, they must be allowed by the judge and filed with the clerk during the same term. After the term has expired, without the court's control over the case being reserved by standing rule or special order, and especially after a writ of error has been entered in this court, all authority of the court below to allow a bill of exceptions then first presented, or to alter or amend the bill of exceptions already allowed and filed, is at an end. U. S. v. Breitling, 20 How. 252, 15 L. Ed. 900; Muller v. Ehlers, 91 U. S. 249, 23 L. Ed. 319; Jones v. Machine Co., 131 U. S. Append. cl; Hunnicutt v. Peyton, 102 U. S. 333, 26 L. Ed. 113; Davis v. Patrick, 122 U. S. 138, 7 Sup. Ct. 1102, 30 L. Ed. 1090; In re Chateaugay Ore & Iron Co., 128 U. S. 544, 9 Sup. Ct. 150, 32 L. Ed. 508.

The duty of seasonably drawing up and tendering a bill of exceptions stating distinctly the rulings complained of and the exceptions taken to them belongs to the excepting party, and not to the court. The trial court has only to consider whether the bill tendered by the party is in due time, in legal form, and conformable to the truth; and the duty of the court of error is limited to determining the validity of exceptions duly tendered and allowed. Hanná v. Maas, 122 U. S. 24, 7 Sup. Ct. 1055, 30 L. Ed. 1117. Any fault or omission in framing or tendering a bill of exceptions, being the act of the party, and not of the court, cannot be amended at a subsequent term, as a misprision of the clerk in recording inaccurately or omitting to record an order of the court might be. In re Wight, 134 U. S. 136, 10 Sup. Ct. 487, 33 L. Ed. 865. The writ of certiorari prayed for must, therefore, be denied, and the case must be determined upon the original bill of exceptions." Again, in Muller v. Ehlers, 91 U. S. 249, 250, 23 L. Ed. 320, the court uses this language: "Upon the adjournment for the term the parties were out of court, and the litigation there was at an end. The plaintiff was discharged from further attendance; and all proceedings thereafter in his absence, and without his consent, were coram non judice. The order of the court, therefore, made at the next term, directing that the bill of exceptions be filed in the cause as of the date of the trial, was a nullity. For this reason, upon the case as it is presented to us, the bill of exceptions, though returned here, cannot be considered as part of the record.” An order extending the time for filing a bill of exceptions is a judicial act. Village of Marseilles v. Howland, 136 Ill. 84, 26 N. E. 495; 3 Enc. Pl. & Prac. 469, and cases cited. The legislature cannot, directly nor indirectly, perform a judicial act. In an early case it was said: "The circuit court did right in refusing to hear the new trial granted by the special act of the legislature. The legislature does not possess the power to grant a new trial in a suit at law. The constitution of Indiana has always contained the following provision: "The powers of the government of Indiana shall be divided into three distinct departments, and each of them be confided to a separate body of magistracy, to wit: those which are legislative, to one; those which are executive, to another; and those which are judiciary, to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.' There is no section of the constitution permitting the legislature to grant new trials. The granting of a new trial is a judicial act, and, in this state, controlled by settled rules of law. If an inferior court should, in any given case, exercise the power to grant new trials in violation of these settled rules, this court would set aside the grant, and leave

the judgment rendered unaffected. Now, the constitution above quoted says the legislature shall not perform a judicial act. The granting of a new trial, we have seen, is a judicial act. Therefore the legislature cannot grant a new trial. And it is a power that should not be possessed by the legislature in its legislative capacity, because in that capacity it would not be governed by legal rules. In governments where the constitution converts the legislature, on some occasions, and for some purposes, into a court, while that body is thus acting, it is governed by the same rules, and restrained in its action by the same authorities, as are courts of law. Not so where it acts simply in its legislative capacity; and to permit it to dispose of judicial questions in that capacity would be in the highest degree dangerous to the rights of the individual members of the community." The act of March 11, 1901, practically extended the time for tendering bills of exceptions in cases already finally disposed of in the trial courts, and which were pending in this court and the appellate court on appeal. The grant of such an extension under these circumstances was a judicial act, attempted under the form of a statute special in its nature and operation, and therefore not within the power of the legislature. For this reason, also, the act must be held unconstitutional.

The foregoing ruling takes the bill of exceptions containing the evidence out of the record; but other questions are presented by the assignment of errors, which may be decided without reference to the evidence. We are asked by the appellee to dismiss the appeal, and not to consider these questions, because of the supposed mutilation of the record; but we do not feel justified in doing So. In the preparation and filing of the original bill and in the subsequent proceedings for the removal of that bill and the substitution of a new bill the appellant had the apparent authority and sanction of two express statutes, which had not then been held invalid. Under these circumstances we are not disposed to subject a party who has acted in perfect good faith, and under the advice of eminent counsel, to the penalty of a wanton and inexcusable mutilation of the record. Montgomery v. Gorrell, 49 Ind. 230. The motion to dismiss the appeal is therefore overruled.

The refusal of the court to render judgment for the appellant on the answers of the jury to certain interrogatories is one of the errors assigned, and will be first considered. The complaint stated, in substance, that the Indianapolis Excelsior Manufacturing Company was a corporation organized under the laws of this state, and on April 21, 1898, engaged in the manufacture of excelsior, or wood hair; that Jesse B. Johnson was the manager and proprietor of said business; that the appellee was employed by the defendant on said date to operate certain

machines in defendant's said factory; that it was no part of the duty of the appellee to keep the machines safe and in repair; that the machines were constructed in the manner described in the complaint for the purpose of cutting excelsior, or wood hair, and consisted partly of a knife moving rapidly up and down, fastened to an iron plate by set screws; that the defendant negligently permitted the screws, nuts, and bolts which fastened the steel blade in its place to become worn, defective, and loose, so that the motion of said machine caused said blade to become loose,-of all of which the appellee had no knowledge, but which was known to the defendant long enough before the accident to appellee to enable it to repair the same; that while the appellee was working at and using the said machine the said blade, by reason of the loosening of the screws, nuts, etc., slipped through said plate about three inches, and, without fault or negligence on the part of the appellee, severed his hand from the arm a little below the wrist joint, etc. The answer was a denial, and the cause was submitted to a jury. on the trial the plaintiff below dismissed the action as to the Indianapolis Excelsior Manufacturing Company, and a verdict was returned against the defendant Johnson, with answers to interrogatories submitted by the parties. The defendant below moved for judgment in his favor on the interrogatories.

Up

"(53)

The following were some of the questions of fact, with the answers to the same: Was it not the duty of Frank Clark, as foreman, to keep defendant's excelsior machines in order and sharpened, and set the knives or bits? Answer. Yes." "(59) Were not the threads in the plate of defendant's excelsior machine, into which the set screws were fastened, worn out and smooth at the time the plaintiff was injured, and for several months prior? Answer. They were considerably worn." "(91) Could not Frank Clark have discovered, by ordinary care and observation, long before the happening of this accident, that from the condition of the threads in said plate the said set screws were liable to work loose at any time? Answer. Yes." "(62) Did not the bit or knife in said excelsior machine slip out and cut off defendant's [plaintiff's?] hand? Answer. Yes. (63) Did not said bit or knife slip out on account of the worn and defective condition of the attachments which held said knife in place? Answer. Yes." "(66) If said bit slipped down, would it not extend out toward the plaintiff's hand while placing wood in the ordinary manner between the rollers in said machine? Answer. Yes." These answers, which are plain, and bear directly upon the main issue in the case, are consistent with each other, and fully sustain the general verdict in favor of the appellee. Whether the appellee was injured by reason of a defect in the machinery; whether that defect was known to the appellant, and

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