Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

jury that if the Chase girl notified her father, as testified to by her in the hearing of the plaintiff, and the plaintiff with the opportunity so to do, neglected to explain to the defendant, such neglect may have justified the defendant in arresting him." The court declined to make this ruling. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.

W. S. Stearns and J. H. Butler, for defendant.

The instruction requested was appropriate and right, and the instruction given was not a full equivalent therefor. The gist of the defense was that the daughter's notification to her father made it the keeper's duty then to explain his business, and that his omission so to do justified the defendant's acts; and it was the defendant's right to have a more specific instruction on this point,— to have the bearing of said notification upon the keeper's duty and the defendant's acts stated or referred to. Hunt v. Lowell Gas-light Co., 1 Allen, 343; Shattuck v. Rand, 7 N. E. Rep. 43.

P. B. Kiernan, for plaintiff.

The instructions given by the court were sufficiently full and correct. Mitchell v. Wall, 111 Mass, 492; Kidder v. Parkhurst, 3 Allen, 393. No exception lies to the refusal of a judge, at the close of his chärge to the jury, to give an instruction which is covered by the instructions already given. Brown v. Dean, 123 Mass. 255. See Phillips' Appeal, 132 Mass. 233. The judge may disregard the words of the requests, and state the law applicable to the facts in his own mode, and in his own order. Howes v, Grush, 131 Mass. 207. No exception lies to the refusal to give an instruction which is based on a portion of the evidence only. Com. v. Este, 140 Mass. 279; S. C. 2 N. E. Rep. 769; Com. v. Devlin, 141 Mass. 423; S. C. 6 N. E. Rep. 64.

FIELD, J. In Rohan v. Sawin, 5 Cush, 281-285, it is said, in reference to felonies, that, "as to the right appertaining to private individuals to arrest without a warrant, it is a much more restricted authority, and is confined to cases of the actual guilt of the party arrested, and the arrest can only be justified by proving such guilt." See Com. v, Carey, 12 Cush. 246–251. The rule by some other courts has been stated to be that a private person can only justify for an arrest without a warrant, on suspicion of felony, by proving that a felony had actually been committed, and that he had probable cause for believing that the person arrested was the person who committed it. Allen v. Wright, 8 Car. & P. 522; Reuck v. McGregor, 32 N. J. Law, 70; Brockway v. Crawford, 3 Jones, (N. C.) 433; Holley v. Mix, 3 Wend. 350; Teagarden v. Graham, 31 Ind. 422. Under either view of the law, the instructions given were sufficiently favorable to the defendant. If no felony had been committed, it is difficult to see what defense the defendant had. The request was for a ruling upon the effect of specific testimony, when there was other evidence relevant to the same point, and the instructions given covered the whole subject; and the request omits the important qualification that the defendant must have believed, from what the Chase girl told him, that the plaintiff had wrongfully taken money from the drawer. It was rightly refused. Exceptions overruled.

(109 Ind. 199)

LUDLOW, Guardian, etc., 0. LUDLOW and others.

(Supreme Court of Indiana. January 8, 1887.) 1. PLEADING—ANSWER-DEMURRER-WAIVER.

Where a party files an answer while a demurrer to the complaint is under advise

ment, he waives his right to a ruling upon the den urrer. 2. SAME-ASSIGNMENT OF ERROR-COMPLAINT AS A WHOLE.

Where the sufficiency of a complaint or cross-complaint is called in question for the first time by an assignment of error in the supreme court, it must be taken as an entirety, and it is sufficient if any one paragraph be good, as they cannot thus be

questioned separately. 3. SAME-EACH PARAGRAPH COMPLETE.

Each paragraph of a pleading must be complete within itself, and cannot be

aided by reference to another paragraph. 4. TAXATION – LIEN — TAXES ASSESSED ON PORTION OF REAL ESTATE - PURCHASER AT

SALE—MORTGAGEE.

Where part of a man's real estate is sold to pay taxes, which, before the sale, were a lien on all of his realty, such lien is transferred to the purchaser on the part purchased by him, his deed being invalid, without regard to what property of such owner they were assessed on; and one who takes a mortgage froni the original owner upon such part after the sale, and with constructive notice thereof, is not entitled to have such portion declared free, and the lien transferred to the portion on which the taxes were originally assessed.

Appeal from circuit court, Dearborn county.
Roberts & Stapp, for appellant. John K. Thompson, for appellees.

HOWK, J. This was a suit by appellant to foreclose a mortgage on certain real and personal estate in Dearborn county, alleged to have been executed by appellees Edward S. and Julia E. Ludlow, to the appellant, and to collect the debt secured thereby. It was alleged in appellant's complaint, among other things, that appellee Joseph H. Burkam claimed to have liens upon and an interest in the mortgaged real and personal estate, which pretended liens and claims were all inferior to appellant's mortgage lien, and were false, and of no virtue and effect whatever, and appellee Burkam was made a defendant to the suit, that he might answer as to his interest in such real and personal estate. Appellee Burkam answered by a cross-complaint in two paragraphs. Appellant answered Burkam's cross-complaint by a general denial thereof, and by a second, third, and fourth special or affirmative answer. Burkam's demurrer to the second, third, and fourth paragraphs of appellant's answer to the cross-complaint was sustained by the court. The issues joined were heard by the court, and a finding was made for appellant, as against the appellees Edward S. and Julia E. Ludlow, for the amount due on their note and mortgage, and for the foreclosure of the mortgage, etc. The court further found for appellee Burkam, on his cross-complaint against his co-appellees and appellant, that his tax deed was ineffectual to convey to him the title to the mortgaged property, but that it transferred to him the lien of the state on such property to secure the payment of the amount found due him for purchase money, taxes paid, penalties, and costs, and that such lien was superior and prior to appellant's mortgage lien, and ought to be foreclosed. In accordance with its findings herein, the court made and entered its final judgment and decree.

The first error assigned here by appellant is the overruling of his demurrer to each paragraph of Burkam's cross-complaint. It is shown by the record that appellant filed a demurrer to each paragraph of such cross-complaint, and that such demurrer was “argued by counsel, and submitted to and taken under advisement by the court,” but the record wholly fails to show that the court ever made any ruling on such demurrer. The first error, therefore, presents no question for our decision.

v.9N.E.no.9449

Appellant has assigned as error that the court erred “in neglecting and refusing to pass upon appellant's demurrer to each paragraph of Burkam's cross-complaint. No such neglect or refusal of the court is shown by the record of this cause. All that the record discloses on this subject is that, pending the court's advisement as to his demurrer, appellant effectually waived, as he had the right to do, any ruling on such demurrer, by filing his answer to the merits in bar of Burkam's cross-complaint. This error, therefore, presents no question for our decision.

Another error assigned by appellant is that neither paragraph of Burkam's cross-complaint states facts sufficient to constitute a cause of action. This assignment of errors presents no question here. Where the sufficiency of a complaint or cross-complaint is called in question for the first time by an assignment of error here, it is settled by our decisions that the alleged error can be predicated only upon the complaint or cross-complaint, as an entirety, and not upon the separate paragraphs thereof. Reyman v. Mosher, 71 Ind. 596. But, if the rule were otherwise, it is clear, we think, that, in each paragraph of his cross-complaint, Burkam stated a cause of action sufficient to withstand a demurrer, and good beyond doubt when challenged for the first time by an assignment of errors here. In each paragraph of his cross-complaint, Burkam alleged that he was the owner of the mortgaged property, under a tax deed, pursuant to a tax sale of the property, which antedated the date of appellant's mortgage thereon, and that his co-appellees and appellant each claimed an interest in such property which was adverse to Burkam's title thereto. These facts alone were sufficient to make each paragraph of Burkam's cross-complaint a good cause of action, even on demurrer, under section 1070, Rev. St. 1881. The provisions of that section have always been construed liberally by this court. Second Nat. Bank v. Corey, 94 Ind. 457; Conger v. Miller, 104 Ind. 592; S. C. 4 N. E. Rep. 300; Johnson v. Taylor, 106 Ind. 89; S. C. 5 N. E. Rep. 732; Rausch v. Trustee, etc., Church, 107 Ind. —; S. C. 8 N. E. Rep. 25.

Appellant has also assigned as error the sustaining of Burkam's demurrer to the second, third, and fourth paragraphs of his answer to Burkam's crosscomplaint. Of these rulings, appellant's counsel only complain here, as we understand their argument, of the sustaining of Burkam's demurrer to the third and fourth paragraphs of appellant's answer. In such third paragraph the appellant, for a further partial answer to the second paragraph of Burkam's cross-complaint, alleged that appellee Burkam, on the twentieth day of February, 1879, took possession of the real estate mentioned in appellant's complaint, without right, and had ever since retained possession thereof; that the annual rental value of such real estate was $150; that there was then due from Burkam for said rent to said Edward S. Ludlow the sum of $900, which was wholly unpaid; and appellant prayed that said sum might be set off against any amount that might be found due Burkam, on his alleged tax lien. It is very clear, we think, that the court did not err in sustaining Burkam's demurrer to this third paragraph of answer. It fails to show that appellant, at the time this suit was commenced, had or held any interest in the subject-matter of Burkam's cross-complaint, or that he, or said Edward S. Ludlow, then held the claim against Burkam described in such paragraph. Whatever else might be said of the paragraph of answer we are now considering, it is certain, we think, that it does not show, by any of the facts stated therein, that appellant had any interest in or lien upon the property against which Burkam was seeking to enforce his tax lien. Under our Code, the rule is well settled that each paragraph of a pleading, whether of complaint, answer, or reply, must be perfect and complete within itself, and cannot be 'aided by reference to another paragraph. McCarnan v. Cochran, 57 Ind. 166; Smith v. Little, 67 Ind. 549; Entsminger v. Jackson, 73 Ind. 144; Lynn v. Crim, 96 Ind. 89.

In his fourth paragraph, for a further partial answer to the second paragraph of Burkani's cross-complaint, appellant alleged that “on and for a long time before the nineteenth day of February, 1879, — had been the owner and in possession of the real estate described in appellant's complaint, and during such time was also the owner and in possession of a tract of 86 acres of land, particularly described, in Dearborn county; that on the thirteenth day of August, 1875, said Edward S. Ludlow and his wife mortgaged said 86 acres of land to said Burkam to secure the payment of $2,500; that after. wards Burkam foreclosed such mortgage, and, under the decree of foreclosure, on the second day of February, 1878, he purchased said 86 acres of land at sheriff's sale for $3,138.61, and on the third day of February, 1879, such land not having been redeemed, he received a sheriff's deed thereof; that, on the day last named, the taxes on said 86 acres of land, for the years 1874 to 1878, inclusive, were unpaid, and a lien upon such real estate to the amount of $600; that Burkam, for the purpose of avoiding the payment of the tax lien on said 86 acres of land, caused the county treasurer to sell the real estate described in appellant's complaint, at public sale, to satisfy, not only the taxes assessed thereon and penalties, amounting to but also the taxes assessed on said 86 acres of land, and penalties thereon. And appellant further said that Edward S. Ludlow and his wife mortgaged to appellant, on February 25, 1879, the real estate described in his complaint to secure the payment of $783, which was wholly unpaid. Wherefore appellant prayed that the taxes, which were assessed against said 86 acres of land, and all penalties and costs thereon, be adjudged to be a lien on said 86 acres of land, and that the real estate described in appellant's complaint be adjudged to be free from the lien thereof."

We are of opinion that the facts stated in this paragraph of appellant’s answer are not sufficient to entitle him to the relief he asked therein, or to any other equitable relief. Prior to the tax sale to Burkam, the taxes assessed against Edward S. Ludlow were a lien upon all his real estate, including said 86 acres of land, but after such tax sale the lien of the state for all Ludlow's taxes, without regard to what property belonging to him they were assessed on, was transferred to Burkam on the real estate purchased by him at such sale, under and by force of our statute, if his tax deed should prove invalid, or ineffectual to convey the title. McKeen v. Haskell, 108 Ind. —; S. C. 8 N. E. Rep. 901. After such tax sale to Burkam, and with constructive notice, at least, of such sale, and of what might be its consequences, under our tax or revenue laws, appellant took his mortgage on the real estate so purchased by Burkam. It inust be held, therefore, we think, that appellant has no grounds, either in law or in equity, so far as he has shown in the fourth paragraph of his answer, for the relief demanded therein.

The evidence on the hearing below was not made part of the record, nor does it appear therein. In such a case, of course, we cannot consider or decide the question of excessive damages, or any other question which arises under the alleged error of the court in overruling appellant's motion for a new trial.

We have found no error in the record of this cause which authorizes or requires a reversal of the judgment. The judgment is affirmed, with costs.

(109 Ind. 209)

MCKINSEY V. MCKEE.

(Supreme Court of Indiana. January 11, 1887.) 1. APPEAL-HARMLESS ERROR-CONTINUANCE.

Where the overruling of a motion for continuance causes no harm to the moving party, the supreme court will disregard the mere technical error, if any, especially where the affidavit fails to show due diligence in attempting to get the evidence of a witness on account of whose absence the continuance is asked.

2. TRIAL-EVIDENCE-OBJECTIONS TO.

A mere general objection to evidence on the ground of incompetency is insuffi

cient. 3. APPEAL-RECORD-INSTRUCTIONS-BILL OF EXCEPTIONS.

Where instructions are attempted to be brought into the record by bill of exceptions, what occurred in the way of giving or refusing then must be recited or stated in the bill as a fact, and authenticated by the signature of the judge. Appeal from circuit court, Clinton county. P. H. Dutch and W. R. Moore, for appellant.

ZOLLARS, J. Appellee brought this action for the recovery of damages occasioned by the seduction of his daughter. One of the grounds upon which appellant asks a reversal of the judgment is that the court below erred in overruling his motion for a continuance of the cause over the term. At the time the motion for a continuance was overruled, the court ordered an attachment for one of the absent witnesses. During the trial that witness was brought into court, and gave his testimony. Without stopping to inquire as to whether that testimony was material, and as to whether or not, in any event, there might have been available error in the overruling of the motion for a continuance on account of the absence of that witness, it is sufficient here that appellant suffered no injury by the ruling. In such a case it is the duty of this court to disregard technical errors, and affirm the judgment. Rev. St. 1881, $$ 398, 658; Rothrock v. Perkinson, 61 Ind. 39; Ricketts v. Harvey, 106 Ind. 564; S. C. 6 N. E. Rep. 325; Davis v. Reamer, 105 Ind. 318; S. C. 4 N. E. Rep. 857; Landwerlen v. Wheeler, 106 Ind. 523; S. C. 5 N. E. Rep. 888; Powers v. State, 87 Ind. 144; Brown v. State, 105 Ind. 385; S. C. 5 Ñ. E. Rep. 900; Chicago, etc., R. Co. v. Hedges, 105 Ind. 398; S. C. 7 N. E. Rep. 801; Louisville, N. A. & C. Ry. Co. v. Krinning, 87 Ind. 351.

Again, without deciding as to whether or not it is shown that the testimony of the other absent witness would have been competent, it is enough to say that there was not sufficient diligence, as to that witness, to entitle appellant to a continuance. It is stated, in the affidavit filed in support of the motion for a continuance, that the witness formerly lived with his father at Colfax, in this state; that appellant ordered a subpoena for him, which was returned, "served by copy;" and that he now resides at Clearmont, Ohio. It is not shown for how long a time he has resided in Ohio, nor for how long a time appellant had knowledge of his residence there. For aught that appears, he resided in Ohio at the time the subpæna was issued, and for a long time prior thereto; that appellant had knowledge of that fact, and had ample time to have taken his deposition before the case was called for trial. McDermott v. State, 89 Ind. 187.

It is insisted, also, that the court below erred in the admission of certain testimony. At one place in the record it is stated simply that appellant objected, but no ground of objection was pointed out. At another place it is recited that he objected to the evidence on the ground of incompetency. These were not such objections as raised any question for review here. City of Delphi v. Lowery, 74 Ind. 522; Lake Erie & W. Ry. Co. v. Parker, 94 Ind. 91; Grubbs v. Morris, 103 Ind. 166; S. C. 2 N. E. Rep. 579; Shafer v. Ferguson, 103 Ind. 90; S. C. 2 N. E. Rep. 302; Indiana, B. & W. Ry. Co. v. Cook, 102 Ind. 133; McClellan v. Bond, 92 Ind. 424; Louisville, N. A. & C. Ry. Co. v. Falvey, 104 Ind. 409; S. C. 3 N. E. Rep. 389, and 4 N. E. Rep. 908; Byard v. Harkrider, 9 N. E. Rep. 294; Louisville, N. A. & C. Ry. Co. v. Jones, ante, 476, (present term.)

Question is made as to the correctness of instructions which it is said were given by the court, and as to others asked by appellant, which it is said the court refused. From the record before us, it cannot be determined that any of the instructions asked by appellant were refused, nor that there were any proper exceptions to such refusal, or to the giving of the court's instructions.

« ΠροηγούμενηΣυνέχεια »