Opinion
No. 19,229.
Filed May 12, 1959.
1. APPEAL — Record — Inability To Prepare Bill of Exceptions — Appellate Court Cannot Order New Trial. — The instant petition shows that the Official Court Reporter died and that her successor is unable to read the shorthand notes and for such reason could not certify that a transcript of the evidence prepared from the notes of the decedent was accurate or complete and it is held that the Appellate Court has no authority to grant a new trial at this time. p. 499.
2. TRIAL — New Trial — Death of Court Reporter — Inability of Successor To Prepare Transcript of Evidence — Equity — Courts — Constitutional Law. — Where the Official Court Reporter died and her successor is unable to read the shorthand notes and therefore could not certify that a transcript of the evidence was accurate and complete, the trial court has authority to grant the equitable relief that is necessary to afford an appealing party the constitutional rights guaranteed him by Art. 1, § 12, Indiana Constitution. p. 499.
From the Vigo County Superior Court No. 2.
Robert Phillips, appellant, in his petition herein, in which Maybelle R. Elliott and Central Standard Life Insurance Co. are party appellees, shows that the death of the Official Court Reporter makes it impossible for him to provide a complete and accurate Bill of Exceptions containing the evidence and requests, among other things that a new trial be granted.
Petition denied. By the court in banc.
Floyd P. Newsom, of Terre Haute, for appellant.
James F. Harper, of Terre Haute, and Hyman A. Pierce, of Chicago, Illinois, for appellee.
In this matter which we have before us now is not an appeal, but an informative verified application showing the impossibility of an appeal by reason of the inability of the trial court to prepare and certify a full, true and complete Bill of Exceptions containing the evidence, etc., given in the trial of this cause. There is a showing that the Official Court Reporter died on February 24, 1959, and that her successor has examined the shorthand notes made at the trial, but can only read, or interpret, a part of the original shorthand notes made by the Official Court Reporter and that, by reason thereof, the present Reporter could not certify that a transcript of the evidence prepared from the notes of the decedent was accurate or that such transcript contained all of the evidence given in said cause.
The petition before us, among other things, prays this court to grant a new trial of said cause in the trial court. This we 1. cannot do under our authority at this time.
We believe, under the facts averred in the petition now before us, and under the law applicable thereto, that the trial court has ample authority under such circumstances as we have 2. outlined above to grant the petitioner herein the equitable relief that is necessary to afford the petitioner the constitutional rights guaranteed him by Article I of § 12 of the Constitution of Indiana. See Indianapolis Life Ins. Co. v. Lundquist (1944), 222 Ind. 359, 52 N.E.2d 335, and authorities cited; Cook v. State (1951), 231 Ind. 695, 110 N.E.2d 749, and authorities cited.
We, therefore, must deny the petitioner's petition with the recommendation that he proceed in the trial court in the event the parties hereto cannot agree upon the Bill of Exceptions.
In the event the parties are able to agree upon the Bill of Exceptions, the petitioner herein, Robert Phillips, is given ninety (90) days from the 5th day of April, 1959, in which to file said Bill of Exceptions. A certified copy of this opinion and the order this day entered is ordered served forthwith upon the interested parties and the Superior Court of Vigo County, Room No. 2.
NOTE. — Reported in 158 N.E.2d 295.