Johnson v. Taylor Building Corp.

363 N.E.2d 1067, 173 Ind. App. 342, 1977 Ind. App. LEXIS 870

Opinions

Robertson, C.J.

This is an appeal by James Robert Johnson (Johnson) from a judgment foreclosing a mechanic’s lien and a mortgage lien against real estate owned by him. Johnson has raised six issues for our decision, all of which require the consideration of the evidence for their determination.

The record of the proceedings herein discloses nothing to demonstrate that the transcript of the evidence and proceedings at trial was filed with the clerk of the trial court and thus made a part of the record which is now before us on appeal. We have carefully examined the record of the proceedings, and we do not find an order book entry showing the filing of the transcript of the evidence and proceedings at trial. There are no file marks of the trial court clerk in the transcript of the evidence as some indication that the transcript was filed with him. There is no direct statement in the Clerk’s Certificate that the transcript was filed with him. In fact, the Clerk’s Certificate carries no caption, either names or cause numbers, to identify it as pertaining to the record in this particular case.

The Judge’s Certificate to the transcript recites that the Bill of Exceptions is . . . “signed, sealed and filed and made a part of the record in said cause.” However the Judge’s Certificate is a part of the bill of exceptions (transcript of proceedings at trial), and the certificate of the judge is not sufficient to show the filing of the bill. Jackson v. Jackson (1974), 160 Ind. App. 680, 314 N.E.2d 70; Findling v. Findling (1963), 134 Ind. App. 661, 186 N.E.2d 892.

Rule 7.2 (A) (4) ,of the Indiana Rules of Appellate Procedure provides:

“The transcript of the proceedings at the trial, including all papers; objections and other matters referred to above shall be presented to the judge who presided at the trial, who shall examine the same and if not true, correct the same without delay, and as finally settled by the court, shall sign the same, certifying to the same as beiiig true ánd correct in said proceedings, and order the same filed and made a part of the record in the clerk’s office.”

.This rule requires, as did former Supreme Court Rule 2-3, that the transcript of the proceedings at trial must be filed with the clerk of the trial court and thus be made a part of that court’s records. Boyd v. Ralph Rogers & Co. (1975), 167 Ind. App. 199, 338 N.E.2d 323.

The reason for the rule is stated in Taylor v. Butt (1972), 154 Ind. App. 196, 198, 289 N.E.2d 159, 161:

“Courts speak only by their records, and an appellate tribunal can only be informed from the record made up of entries by the clerk and the bill of exceptions certified by the trial judge and duly filed with the clerk. Coney v. Farmers State Bank (1970), 146 Ind. App. 483, 256 N.E.2d 692; Findling v. Findling [134 Ind. App. 661, 186 N.E.2d 892] supra; Philips v. State (1930), 202 Ind. 181, 172 N.E. 904.”

•If the transcript of the proceedings at trial does not manifest •its having been filed with the clerk of the trial court and made a part of the record there, it is not- a part of the record on appeal and cannot be considered by this Court. Boyd v. Ralph Rogers & Co., supra,; and cases cited therein.

Because the record in the case now before us contains' no proper showing that the transcript of the proceedings at trial was filed with the Clerk of the Putnam Circuit Court, it is not properly before us, and therefore, we cannot decide the issues raised by the appellant, all of which require a consideration of the evidence for their determination.

The judgment is affirmed.

Lowdermilk, J., concurs; Hoffman, J. (participating by designation), dissents with opinion.