Opinion
No. 13,450.
Filed March 25, 1929.
1. APPEAL — Term-time Appeal — Filing of Transcript — Failure to File Within Time Limited — Dismissal of Appeal. — Where an appeal bond was filed on the ninth day of July and the transcript of the record was not filed until the eighth day of September, it was one day too late to perfect a term-time appeal, as required by § 698 Burns 1926, and where no notice was served on the appellees as required to take a vacation appeal, the appeal was properly dismissed. p. 18.
2. APPEAL — Record Imports Absolute Verity — Contradiction by Affidavits — Not Permitted. — The transcript of the record on appeal imports absolute verity, and it cannot be contradicted by affidavits of the appellant or others. p. 18.
3. APPEAL — Error in Record of Case — Remedy Therefor — Certiorari for Corrected Record. — If an entry of an act or proceeding of the trial court is wrong, the remedy of the appellant is to have the record corrected, and then bring the corrected record to the Appellate Court by certiorari. p. 18.
From Starke Circuit Court; William C. Pentecost, Judge.
Action between Basilio Bau and Alva Short and others. From the judgment rendered, Bau appealed. As he failed to perfect a term-time appeal or to give notice of a vacation appeal, his appeal was dismissed. A month later, he filed a motion to reinstate his appeal. Motion denied. By the court in banc.
Henry C. Miller, for appellant.
William J. Reed, for appellees.
On January 4, 1929, we sustained a motion interposed by appellees and dismissed this appeal for want of jurisdiction over them, their said appearance being a limited one. On February 9, 1929, the appellant filed his motion asking that we set aside said order of dismissal, and reinstate this cause upon our docket. With his said motion, and as a part thereof, he filed two affidavits which will be hereafter noticed.
The transcript of the record herein, duly certified, contains the following entry: "And afterwards, to wit, on the 9th. day of July, 1928, the same being in vacation, the following 1. further proceedings were had in the office of the clerk of the Starke Circuit Court, in cause No. 10205, to wit, . ., comes now the defendant by Harry C. Miller, his attorney, and files appeal bond in these words, to wit," etc. The court had theretofore fixed the penalty of the appeal bond and named and approved the sureties thereon, and the bond filed was strictly in conformity to the order of the court so made. On September 8, 1928, the transcript was filed in the office of the clerk of this court. This was one day too late to preserve the term-time appeal, and no notice was ever given or served upon the appellees, as was necessary to perfect a vacation appeal.
The appellant, by the affidavits attached to his said motion to set aside said order of dismissal and reinstate this cause, attempts to contradict the record herein as to the date 2, 3. upon which said appeal bond was filed; this he cannot do; the record, as it stands, imports absolute verity and cannot be thus contradicted. If the entry as to the date upon which bond was filed is, in fact, incorrect, the remedy of the appellant was to have the trial court correct that record, and then, after such correction had been made, bring to this court, by certiorari, the corrected record. We have delayed for some time the ruling on this motion to afford appellant an opportunity to have said record corrected, if it be in fact erroneous, but, after waiting and giving ample time in that behalf, no steps have been taken. The motion to set aside and to reinstate cause is denied.