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5. SAME-NATURE OF FORMER PROCEEDING- iary society to that order, were frequently in EVIDENCE.
each other's company, and under pretense of In a bastady proceeding in which defendant pleaded a judgment of dismissal rendered
love and affection for relatrix, and by virtue in a former proceeding, evidence tending to show
of his promise of marriage, and by reason that the prosecuting attorney had no knowledge of his standing in the community and said of such former proceeding until long after its termination was admissible to show that the
order, had complete control of relatrix's love state was not a party.
and confidence; that he made three trips to 6. SAME-DISMISSAL OF FORMER ACTION
see relatrix while she resided with her aunt, EVIDENCE.
telling her on the last trip that on account In a bastardy proceeding defendant pleaded
of the publicity as to her condition he would a judgment of dismissal in a former proceeding. Relatrix replied that her consent to the dis
not marry her, but would pay her $50 for missal was obtained by fraud, and that when the purpose of paying her expenses of lying it was given her mind was under the absolute in, doctor bills, and the like incident to the control of defendant. Held that, though it ap
birth of the child; that without the knowlpeared that on the day relatrix consented to the dismissal defendant had stated that he would
edge and consent of the relatrix he employed not marry her, nevertheless evidence that they an attorney to prepare a complaint, charging had been engaged was admissible in rebuttal. him with bastardy, and, on the day the pro
Appeal Circuit Court, Montgomery County; ceedings set out in appellant's answer were Jere West, Judge.
entered and had before Justice Brewer, Action by the state of Indiana, on rela
he informed relatrix that unless she would tion of Estella McGill, against Charles W.
go before a justice of the peace and sign a Gooding. From a judgment for plaintiff,
receipt he would not do anything for her defendant appeals. Affirmed.
whatever; "that relatrix was completely
crushed in mind, body and spirit by defendClodfelter & Fine, for appellant. Jones &
ant's declaration and the realization of her Murphy, 0. P. Lewis, and O. B. Ratcliff, for
condition," and, being without a home and appellee.
wholly destitute of means of support, ac
companied appellant to said justice's office, MYERS, J. This is an action begun by where said proceedings were had, and, withappellee against appellant before a justice out anything being said, or any pretense reof the peace, charging appellant with being lative to her accepting any money for the the father of the relatrix's unborn bastard maintenance of the child, but believing and child. The complaint is in the usual form relying upon the fraudulent representations filed in such actions. On a hearing before of appellant by him made to her, as to the the justice, appellant was held to appear in purpose and purport of the instrument she the Fountain circuit court, where was filed was signing, relatrix signed a receipt for a transcript of the proceedings before said $50, which was fraudulently represented to justice. Appellant answered in three para- her as being a release of his liability to her graphs; the first paragraph being a general on account of her pending sickness, and did denial. The second and third paragraphs not know that she was signing anything purof answer show such proceedings had before porting to be a settlement to her satisfacEdward M. Brewer, a justice of the peace tion for the maintenance of said child unof Union township, Montgomery county,
county, born; that the prosecuting attorney was not Ind., constituting a former adjudication and present nor sent for, nor any other person settlement of the present cause of action. To acting for or to advise her, nor did she these latter two paragraphs of answer, ap- understandingly enter of record any order, pellee answered in three paragraphs; the receipt, paper, or any other declaration showfirst two filed in the Fountain circuit court, ing that satisfaction had been made to her and the third in the Montgomery circuit for the maintenance of said child; that said court, where the cause was sent on change of proceedings before Justice Brewer were set
The first paragraph of reply is a in motion and carried on by appellant, for general denial, the second and third is ad- the fraudulent purpose of obtaining the dressed to the second and third paragraphs settlement of his liability in bastardy, under of answer separately and severally. The the fraudulent pretense of paying the exsecond paragraph of reply, after averring penses of her pending sickness; that said facts covered by the complaint, avers that justice had no knowledge of the real purrelatrix and a younger sister are the only pose for which said receipt was signed, and living members of her immediate family; entered said judgment of dismissal upon the that relatrix is an orphan, and at the time filing of the papers, theretofore prepared by her condition became known resided at the appellant's attorney; that, after she signed home of Jasper N. Philpott; that by reason the receipt for $50, that sum was paid to of her condition she was driven from her said justice, and by him to relatrix, and no then home, and from whence she went to the hearing of said cause was had; that she home of an aunt in the city of Crawfords- received no other consideration, and said sum ville, where she was living at the time the is wholly insufficient for the maintenance proceedings were had before Justice Brewer; of said child. The reply further shows an that appellant, as a member of a fraternal offer to allow a credit of $50 against any order, and relatrix, a member of an auxil- judgment which may be rendered against appellant in this action; that relatrix is waive, yet she has the power to dismiss such without any money or means with which to action, and such dismissal and judgment repay said $50 or any part thereof. A de- thereon rendered by a justice of the peace, murrer for want of facts was addressed to pursuant to section 1006, supra, will constithis paragraph and overruled. Thereupon tute a complete bar to another action for the on motion and affidavit the venue of this same cause. State ex rel. v. Carlisle, supra. cause was changed to the Montgomery cir- In the case at bar appellant argues that cuit court, where a third paragraph of reply Justice Brewer had jurisdiction of the subwas filed. This paragraph avers practically ject-matter, and, the proceedings and judgthe same facts as those stated in the second ment appearing regular on their face, such paragraph, with the additional averment judgment must control until set aside by a that said justice of the peace, Brewer, knew direct attack, even though it be tainted with at the time he paid relatrix said $50 that fraud. Sbideler v. State, 129 Ind. 523. 525, she did not understand the nature of the 28 N. E. 537, 29 N. E. 36, 16 L. R. A., 225, papers and records which she had signed; 28 Am. St. Rep. 206; Palmerton, V. Hoop, that he knew that appellant was not paying 131 Ind. 23, 28, 30 N. E. 874. Appellee relatrix any money whatever for the main- claims that each paragraph of the reply tenance of said unborn child; that he con- shows that relatrix was induced by fraud spired with the defendant for the purpose of to enter the acknowledgment and dismissal deceiving relatrix and in procuring her to set up in appellant's answers, and for that enter said satisfaction of record, knowing reason, and because the state was not in that the proceedings before him were for fact a party to the proceedings before Justice the purpose of obtaining settlement of de- Brewer, the judgment was a nullity. Gresfendant's liability in bastardy, under the ley v. State ex rel., supra; Ice v. State ex fraudulent proceedings and pretext to pay rel., supra. In our opinion each paragraph relatrix for her sickness. A demurrer to of the reply exhibits facts showing that the this paragraph of reply, for want of facts proceedings had before Justice Brewer were sufficient to avoid either the second or third procured, managed, and controlled by apparagraphs of answer, was overruled. The pellant; that the state was a party only in issues thus formed were submitted to a jury, name and not in fact. No one was present trial and verdict in favor of appellee, motion having authority to act for the state. In for a new trial overruled, judgment in ac- the name of the state, appellant brings an cordance with the verdict of the jury, and for action against himself to secure maintenance $550, with a credit of $50, and ordering the for his own offspring. He appears to the same paid in partial payments, and from action and submits himself to the jurisdiction which judgment appellant appeals to this of the court. He has the mother of the child court.
accompany him into open court, and there 1. This is a civil action. Reynolds V. under the sanctity of a judicial proceeding, State ex rel., 115 Ind. 421, 17 N. E. 909; and for the purpose of relieving the public State v. Carlisle, 21 Ind. App. 438, 52 N. and society of the burden of maintaining E. 711. And conceding that the answers such child, he pays to the penniless, homeless incorporating the proceedings had before mother, who has just arrived at her majority, Justice Brewer in bar of this action are the munificient sum of $50, and she enters sufficient brings us to the consideration of of record an admission that provision for the facts pleaded in the second and third the maintenance of the child has been made paragraphs of the reply. It is settled that to her satisfaction. In our opinion, considerall prosecutions for bastardy must originate ing the facts disclosed by the reply, the state before a justice of the peace. Armstrong was not a party to the proceedings before v. State, 24 Ind. App. 289, 56 N. E. 681. Justice Brewer, and, this being true, the That such proceedings must be prosecuted judgment was not rendered in an adversary in the name of the state, and for the benefit proceeding, and for that reason will not of the illegitimate child. Gresley v. State bar another action for the same cause. ex rel., 123 Ind. 72, 24 N. E. 332; Ice v. Shideler v. State, supra; Ice v. State ex State ex rel., 123 Ind. 590, 24 N. E. 682; rel., 123 Ind. 593, 24 N. E. 682. The section Dehler v. State ex rel., 22 Ind. App. 383, 53 of the Code above referred to does not refer N. E. 850. Our Code (section 1006, Burns' to the relatrix as a party, but by its terms Ann. St. 1901) provides that “the prosecuting she is designated as the prosecuting witwitness, if an adult, may at any time before ness, and the Supreme Court, in Ex parte final judgment, dismiss such suit if she will Hasse, 50 Ind. 149, and this court, in Wilfirst enter of record an admission that pro- liams v. State ex rel., 3 Ind. App. 350, 29 N. vision for the maintenance of the child has E. 1079, held that the relatrix was not a been made to her satisfaction,
and party to the action. Therefore, granting that such entry *
shall be a bar to all she had full authority to determine the other prosecutions for the same cause and question of satisfactory provision for the purpose.” Considering the above decisions child's maintenance, this she could do only along with the Code provision, it would seem in case there was a bona fide action pending, that, while the state is a party to the action, and, having determined that there was no and has rights which the relatrix cannot such action pending before Justice Brewer, her acknowledgment is unavailing for any stance to explain the actions of a young, purpose, as the entire proceedings were void. penniless, homeless, inexperienced, and heartWe are clearly of the opinion that the broken girl, wishing to curry favor with the weight of authority in this jurisdiction sus- author of her downfall. We are not to say tains the ruling of the trial court in holding what weight should be given this evidence, that each paragraph of the reply contains but the jury had a right to consider it for facts sufficient to avoid appellant's answers. whatever it was worth. Appellant requested
2. Appellant also insists that the para- the court to give the jury two instructions. graphs of reply are bad for the reason that Both were refused. These instructions are neither contain an allegation that the money to the effect that, if the jury should find paid to relatrix was ever refunded, or that that the proceedings had before Justice an offer to refund the same was made before Brewer were as alleged in appellant's the commencement of this action, citing answers, under the evidence in this case State ex rel. v. Carlisle, supra. By reference they should return a verdict for appellant. to that case it will be seen that the relatrix, These instructions took from the jury their upon her own motion, began the action
right to consider the evidence applicable to whereby upon dismissal she received $20.
the reply, and were based upon the theory All the parties to that action appeared in that there was no evidence in the record
person and by counsel, and this court heid tending to prove that the Brewer judgment
was a nullity. In our opinion there was no error in refusing to give these instructions. The court, upon its own motion, in substance told the jury that, if they found that the action and proceedings had before Justice Brewer were procured and brought about wholly by appellant, and that the money paid to relatrix was paid by appellant and received by her in payment and on account of expenses of her pending sickness, it would not be necessary to return or offer to return this money prior to bringing this action in order to authorize a recovery. There is evidence in the record to which this instruction is pertinent, and, this being true, what we have heretofore said on the question raised by this instruction warrants the conclusion that it was not erroneous.
Finding no error in the record, the judg. ment of the trial court is affirmed.
that a judgment rendered before a justice of the peace, under the facts appearing, was sufficient to bar another action for the same cause. Also that, before such judgment could be set aside, the pleadings must affirmatively show a refunding or offer to refund the money paid to the relatrix. There is a marked difference between that case and the case at bar. In the Carlisle Case the money was paid and the dismissal had in an adversary proceeding, and was not a voluntary payment on the part of the defendant, while in the case at bar, the proceedings being absolutely void, for the reasons heretofore stated, the payment was a voluntary contribution, or at least in so far as it was paid on account of any judicial proceeding.
3. The questions arising on the assignment of error, based upon the overruling of appellant's motion for a new trial, relate to the admission of certain evidence and to the giving and in refusing to give to the jury certain instructions. After a careful reading and consideration of the evidence admitted over appellant's objection, we find no error in this particular authorizing a reversal of the judgment. It is the duty of the prose cuting attorney to represent the state in such actions, and, upon the theory of the replies filed, any evidence tending to show that the state's representative was not notified, and had no knowledge of such proceeding until long after its disposition, was competent as tending to prove the ultimate fact that the state was not a party. The evidence tending to prove that relatrix and defendant were engaged to be married was admissible, unless because it was offered on rebuttal. Ramey V. State ex rel., 127 Ind. 243, 26 N. E. 818; Gemmill v. State ex rel., 16 Ind. App. 154, 43 N. E. 909. Referring to the reply, we find allegations showing that relatrix was under the absolute control of appellant on the day she accompanied him to the office of Justice Brewer, and, while he told her on that day he would not marry her, evidence of such agreement was nevertheless admissible on rebuttal as tending to show the relations existing between them, and as a circum
(38 Ind. App. 396)
June 22, 1906.)
One partner cannot maintain a suit against his copartner to recover an alleged indebtedness growing out of a partnership transaction until the affairs of the partnership are closed up and its debts are paid.
[Ed. Note.For cases in point, see vol. 38, Cent. Dig. Partnership, § 157.] 2. SAME.
Plaintiff and defendant purchased land, which was deeded to them as co-tenants. There. after defendant lived on part of the land and farmed it with implements and stock, part of which were furnished by plaintiff under an agreement that defendant might use such pro duce of the farm as was necessary for the support of himself and his family and apply the balance to the taxes upon the entire tract and on the purchase money. Soon after plaintiff conveyed his undivided half interest in one half of the land to defendant, and vice versa. There were certain improvements on the land conveyed to defendant, and it was agreed that when plaintiff desired to improve his portion of the land defendant should pay him one-half the value of the existing improvements and turn over the implements and stock which had origi. nally been furnished by plaintiff. While de fendant was farming the land under this ar- money was paid in equal portions by the rangement he gave certain notes for borrowed
parties, and that the remainder thereof was money which he used for his own purposes, which notes were signed by defendant, his wife,
paid by the appellant, who also paid the and by plaintiff. There was no firm name, and
taxes on the two tracts while he continued no evidence that defendant had any authority to occupy and use the appellee's quarter to bind plaintiff by a signature on the notes, and section, and also paid the greater portion of plaintiff in fact signed the notes some time after they were executed and signed by defend
the interest as it accrued upon the unpaid ant. Heid, that no partnership existed between part of the purchase money; that the apthe parties, so that the notes were not part- pellee paid a small portion of the interest, nership obligations.
and furnished to the appellant personally Appeal from Circuit Court, Jasper Coun- certain definite sums of money. After the ty; Chas. W. Hanley, Judge.
land had been thus fully paid for, the appelAction by Peter May against Wilbur D. lant, who for eight years had resided with his Bond. From a judgment for plaintiff, de- family in a dwelling upon his own quarter secfendant appeals. Affirmed.
tion, using the other quarter section as a part of Foltz & Spitler, for appellant. Jesse E.
his farm, ceased to hold and use the quarter Wilson, for appellee.
section so owned by the appellee, which
thereupon was taken by its owner, who proBLACK, J. The appellee, who was the
ceeded to erect a dwelling house thereon, plaintiff, and the appellant, who was the de
and thereafter this land was occupied and fendant, in 1894 contracted with one Park
used by another son-in-law of the latter. At inson to purchase from him certain real es
this time some portion of the animals and tate, being two adjoining quarter sections
implements of those so furnished by the apof land in Jasper county; and Parkinson, pellee were retaken by him. in February, 1895, by his general warranty
This was a suit for an accounting and for deed conveyed the land to the appellee and
the recovery of any balance found due the the appellant as tenants in common; the
appellee, there being a counterclaim filed purchase price being $11,200. At and before
by the appellant. The court found there was this conveyance the grantees paid a part of
due to the appellee from the appellant $678,
and that the latter should account to the the price, $3,500, each paying an equal portion thereof, and they became jointly in
former for that sum, and that such sum due. debted to Parkinson for the remainder of the
the appellee from the appellant was wholly price, $7,700, and they executed to him their unpaid. As part of the finding, it was stated:
"The court does not take into account any mortgage therefor upon the half section. The appellee was the appellant's father-in
indebtedness that may be owing by the law, and they resided with their families
partnership, and does not decide any quesin the same neighborhood in Illinois, and
tion concerning the same.” This statement the appellee continued to reside there; but
in the finding furnishes the subject of the in the spring of the year 1895 the appellant
contention here. It is true, as suggested on removed with his family to the land so con
behalf of the appellant, that one partner canveyed to him and the appellee, and took pos
not maintain a suit against his copartner session of the half section, and he continued
to recover an alleged indebtedness of the to occupy and to use for agricultural pur
latter to the former growing out of the partposes the two quarter sections for eight years nership transactions, until the affairs of the thereafter. He brought with him certain partnership are closed up and its debts are agricultural implements and animals owned
paid. Briggs v. Daugherty, 48 Ind. 247; by him, and the appellee sent to the farm
Lang v. Oppenheim, 36 Ind. 47; Powell v. certain agricultural implements and animals
Bennett, 131 Ind. 465, 30 N. E. 513. A court owned by him, which were used upon the
will not ordinarily entertain matters relating farm. In August, 1895, the appellant con
to partnership accounts between partners, veyed to the appellee the undivided one
until by its judgment or decree a final adhalf interest of the former in the western justment of the partnership business can be quarter section, and the appellee conveyed effected. Thompson v. Lowe, 111 Ind. 272, to the appellant the undivided one-half in- 12 N. E. 476. One partner may maintain an terest of the former in the adjoining eastern action to compel an accounting and to requarter section; each conveying for the ex- cover such sum as may be found due bim pressed consideration of $5,600, and the deed upon the final adjustment of the partnership of conveyance to each being expressly made affairs, and if necessary for the accomplishsubject to the purchase-money mortgage to
ment of such result a receiver may be apParkinson, and each grantee by the terms of pointed; but in such an action there cannot the deed of conveyance to him assuming and be a recovery in favor of one partner against agreeing to pay, as part of the consideration the other upon a partial adjustment of the for the real estate so conveyed to him, the affairs of the partnership which leaves some one-half of said mortgage and the one-half of the partnership debts unpaid. See Mereof the purchase-money notes to Parkinson dith v. Ewing, 85 Ind. 410; Miller v. Rapp, secured thereby. There was evidence from 135 Ind. 614, 34 N. E. 981, 35 N. E. 693; which it might have been found that the Adams v. Shewalter, 139 Ind. 178, 38 N. sum of $6,000 of this balance of purchase E. 607.
It is very difficult to ascertain from the portion of the land and of the use and enjoyrecord before us any definite terms or under- ment for the time being of his personal propstanding of the parties upon which the land erty, which continued to be owned by him of the appellee was held and used by the individually. It seems to have been contemappellant. The evidence in this respect is plated that such personal property should be obscure and somewhat contradictory. The returned or accounted for, and that the oneparties appear therefrom to have been ignor- half of the value of the improvements on ant and unmethodical, and their intentions appellant's quarter section should be accountare indicated by their conduct more than by ed for, and that one-half of any net surplus any expressions to each other shown in evi- of income not paid out for the benefit of both dence. Perhaps their relationship and the parties as purchase money, interest, and taxes fact that the daughter and grandchildren of should be accounted for, and that any sums of the appellee were members of the appellant's money furnished by the appellee to the appelfamily residing on the land contributed to the lant at the special instance and request of the indefiniteness of the dealings of the parties latter for his individual uses should be rewith each other. A dwelling house and some paid or accounted for. While the word "partfarm buildings were on the eastern quarter nership” was used somewhat frequently in section, which in the voluntary partition was the court below, especially on the part of the conveyed to the appellant, and he and his appellant, the relation of the parties to each family resided there from the beginning of other does not seem to be properly so chartheir occupancy; and it appears to have been acterized. Some of the appellee's demands agreed that, whenever the appellee should were based upon his right to a portion of the determine to build a residence on his own surplus of the income of the farm; yet such quarter section, the appellant should pay the portion was due him as compensation for the appellee one-half the value of those im- use and enjoyment of his property, rather provements upon the land so owned orig- than as a share of the net profits of the inally by the parties as tenants in common; business of a partnership. also, that the appellant and his family should The indebtedness referred to in the finding have the right to consume and appropriate was evidenced by two certain promissory to their own use so much of the produce of notes, one dated December 23, 1899, for $500, the land as might be needed for their sub- signed by the appellant and by the appellee, sistence, without any obligation to account and one dated August 20, 1900, for $1,000, therefor to the appellee; also, that the land signed by the appellant and his wife and by originally held in co-tenancy should be divid- the appellee. These notes were payable to ed equally, each party owning in severalty the appellant's father, and were given, the one quarter section and paying the original first for $500 borrowed by the appellant from grantor therefor one-half of the purchase his father at its date, and the second for price of the whole half section; also, that the $500 so borrowed at its date, and also in lieu appellant should occupy and cultivate all the of a note of the appellant alone, theretofore land and himself own its products and dispose given, for $500 previously borrowed by him thereof at his pleasure, and after providing of his father. The loans were made to the for his family out of such products, should appellant individually. The notes were not apply the remaining surplus of the net income signed in a firm name. There was no firm of the farm to the payment of the taxes name, and there does not appear to have been thereon, including the taxes on the appellee's any authority in either party to sign his own quarter section, and to the payment of the
name as a firm name, or for or on behalf of accruing interest upon the unpaid purchase both of the parties, or any intention to do so. money, for the payment of one-half of which Each signed as an individual, as and for as between themselves each was bound to the himself alone. Each note was signed by the other, and also to the payment of unpaid appellee some time after its execution, and, principal; and that when the appellee should so far as appears in this case, without contake over the possession and use of his sep- sideration. The money for which the notes arate portion of the land, the animals and were given did not become the property of utensils furnished by him should be restored the appellee, and he does not appear to have to his possession. Whatever surplus of the had any control over its disposition, and he net income was thus applied in payment of testified that he did not know how it was principal, interest, and taxes was used for used. It was owned and controlled by the the equal benefit of each of the parties, and appellant alone, who used it for various purits payment in that manner amounted to an poses, paying some of it upon the principal equal division of such surplus, which perhaps mortgage debt, some for interest thereon, can scarcely be called the net profits of a some for taxes, some for cattle purchased by business, especially in view of the use of an him alone, and some for wages of men who indefinite and varying portion of the income worked on the farm. Some payments were in the support of the appellant and his family. made by the appellant to his father upon this It seems to have been the intention of the indebtedness with money derived from profits parties that the appellee was entitled to have from the land. If he used any part of this, the one-half of such surplus applied to his his own money, for the benefit of the appellee, benefit as compensation for the use of his and not wholly for payment of his own por