Trinler v. Cornelius. The judgment is affirmed, with costs. TRINLER V. CORNELIUS. Where there is a clear conflict in the evidence, the Supreme Court will not disturb the finding below. APPEAL from the Floyd Circuit Court. GREGORY, J.-Suit by a landlord against his tenant for possession of the leasehold premises, commenced before a justice of the peace, and taken by appeal to the circuit court. Trial by the court; finding and judgment for the defendant; motion by the plaintiff for a new trial overruled, and he appeals to this court. It is claimed that the circuit court erred in overruling the motion for a new trial, because the finding was not sustained by the evidence. There was an attempt to terminate the lease by one month's notice to quit, which, under the statute, can only be done where the tenancy is from month to month. The plaintiff and his brother testify that the renting on the 21st of January, 1863, was from month to month, for $25 a month. The plaintiff swears that he had made no other contract, but to increase the rent. The defendant swears that he rented the premises, at that time, for a year, for $300, payable in monthly instalments; and that in February, 1864, he made a contract for another lease of the premises for two years, at $450 a year, payable in like manner; that the latter lease was to have been reduced to writing; that it was drawn up, but not signed, the plaintiff making some objection thereto, as to VOL. XXIV.-7 Lewis v. Prenatt and Others. the stipulations therein as to some improvements to be made; but that he nevertheless occupied the premises, made the improvements agreed on, and paid from month to month the increased rent. The defendant is strongly corroborated by Knapps, Lafollette and Green, disinterested witnesses. A number of witnesses swear that the characters of the two Trinlers, who testify for the plaintiff, are bad; a larger number, however, swear that their characters are good. On the main question of fact involved in this case there is a clear conflict in the evidence, and under the well known rule, we cannot disturb the finding of the court below. The judgment is affirmed, with costs against the appellant. J. H. Stotsenburg and T. M. Brown, for appellant. LEWIS V. PRENATT and Others GARNISHEE-ESTOPPEL.-Proceedings in attachment. Answer by the gar nishee that he was not indebted to the attachment defendant. Reply, by way of estoppel, that the garnishee, before the suing out of the writ of garnishment, had admitted to plaintiff that he was indebted to the attachment defendant, and that, if garnisheed, he would pay the money to the plaintiff. Demurrer to the reply overruled. In the Supreme Court the plaintiff, after joinder in error and submission, pleaded to the assigment of errors that, upon the trial below, the garnishee was permitted to offer evidence that he was not indebted to the attachment defendant. Held, that the plea filed to the assignment of errors would require the Supreme Court to go outside of the record, and hear oral proof of the proceedings of the court below, which cannot be done. Page 99. Held, also, that the facts set up in the reply did not estop the garnishee from denying an indebtedness to the principal defendant. APPEAL from the Jennings Common Pleas. FRAZER, J.-This was a proceeding against Lewis, as garnishee. He answered, denying all indebtedness, &c., at any Lewis v. Prenatt and Others. time, to the principal defendant in the suit. To his answer the plaintiffs replied, in estoppel, that before the filing of the affidavit in garnishment, he admitted and represented to the plaintiffs that he had made a certain purchase of propcrty of one Bingham, which really belonged to the principal defendant; and that a portion of the purchase money remained unpaid; and that if the plaintiff's would garnishee him, Lewis, he would pay the same to the plaintiffs, by means of which, before Lewis paid such purchase money, the plaintiff's were induced to, and did, prosecute the proceedings in garnishment, &c. Lewis demurred to this reply; his demurrer was overruled, and upon this ruling error is assigned, and this is the only question arising upon the record of the court below. But, before procceding to its consideration, there is a novel question of practice in this court which must be disposed of. The appellee joins in error, and, after submission, pleads specially to the assignment of error, and in bar thereof, that, upon the trial below, Lewis was permitted to offer evidence that he was not indebted to the principal defendant, whereby the plaintiffs were deprived of the benefit of their estoppel. The appellant moves to strike out this plea. The issue of fact which it tenders would involve an investigation here, to ascertain by oral proof what evidence was admitted in the court below; and, as the record does not show any objection by the appellees to any evidence offered below by the appellant, in consequence of which we must presumethat no such objection was made, we have the appellee claiming here that he virtually withdrew his reply in estoppel.. This course of practice has never, that we are aware of, been attempted in a court of errors. For what was done in the court below, we must look only to the transcript of its record. Every part of its action can thus appear, if the parties avail themselves of the use of bills of exception; and where this has not been done, it would be strange if the omission can be supplied by making issues of fact here, upon the trial of which we are to learn what was done below. We Lewis v. Prenatt and Others. cannot inaugurate such a practice, and, accordingly, we direct the second paragraph of the appellees' answer here to be stricken out. Indeed, we would do this on our own motion, or wholly disregard it. We now come to the question in the record. The matter alleged by way of estoppel, falls very far short of being such. It consists merely of the admissions of the garnishee, and that the plaintiffs were induced thereby to commence their proceedings against him as garnishee. When, by the admission of a fact, which is not true, one draws another into a line of conduct from which he cannot recede, and which must result to his injury, if the fact be otherwise than it was represented, the party making the admission will not afterward be permitted to show the truth to be otherwise, for the reason that he would thereby perpetrate a fraud upon the party whom he had misled. It is difficult to see how the doctrine could apply against a garnishee, as such. He must answer under oath, and to estop him from answering truly would be to require him to commit perjury. And then the proceeding seems designed to enforce only the rights of the principal defendant against the garnishee, and apply them to the satisfaction of the plaintiff's demand against him; and is not, probably, designed to enable the plaintiff to compel the performance of additional obligations which have arisen in his own behalf against the garnishee. But we need not, and do not, place the present decision upon either of the grounds last alluded to. It is sufficient that the facts pleaded do not, at any rate, constitute an estoppel. The plaintiff parted with no right, and relinquished no security; he stood exactly as he did before the appellant made the representations to him, in all his relations with the whole world, except that he commenced his proceedings of garnishment, and thereby incurred costs. And the record informs us that the appellant at once offered, in open court, to repair the injury by confessing judgment. for such costs. We think that the demurrer should have been sustained. Smith v. The State. The judgment is reversed, with costs, and the cause re- SMITH V. THE STATE. COUNTY COMMISSIONER-RESIDENCE OF.-The statute does not fequire that a member of the board of county commissioners should continue to reside in the district of the county for which he was elected. APPEAL from the Jay Common Pleas. RAY, J.-These proceedings were instituted by the prosecuting attorney for the district, by information, in the nature of a writ of quo warranto, against the appellant, to obtain a judgment of ouster from the office of county commissioner, because said appellant had, since his election to, and qualification for, said office, removed out of the district in which he resided, when so elected and qualified, into another district in the said county. A motion to quash was filed and overruled. This was followed by a demurrer to the information, which was also overruled. An agreed statement of facts was then filed, and the cause submitted to the court for trial. A finding against the appellant, and a judgment of ouster, were rendered, and upon the overruling of a motion for a new trial, this appeal was taken. The act "providing for the organization of county boards, &c.," 1 G. & H., § 2, p. 248, directs that "each county shall be divided into three districts, numbered one, two and three, * ** by the board of county commissioners at their first session after the publication of this act; and one commissioner shall be elected from the residents of each of such districts, by the voters of the whole county." |