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Gauntt r. The State, ex rel. Stout, Auditor.

sion must be given and may be excepted to and reviewed in like manner. The report of the referees

upon

the whole issue stands as the decision of the court, and judgment may

be entered thereon in the same manner as if the action had been tried by the court. When the reference is to report the facts, the report has the effect of a special verdict.”

In this case, the record shows that by agreement “the cause was referred to John C. Nottingham, of Grant county, Indiana, as referee; who shall be duly sworn as such, and shall thereupon find the facts under said issues, and report the facts so found, and the conclusions thereon, to said court on the first day of the next term thereof."

The report of the referee is as follows: “The undersigned referee, appointed by the Grant Circuit Court to try the above cause, and make a finding of the facts therein and his conclusions thereon, reports to the court, that, after being duly qualified as required by the order of reference in said cause, and plaintiff having filed a written request to find all the facts and conclusions of law thereon specifically, and stated separately, I have, pursuant to said order, tried the issues therein, and, after hearing all the evidence, argument of counsel, and due deliberation had, have made and hereby report to the court the facts found by me as such referee, under said order of reference, together with my own conclusions thereon, namely:

“That Russell J. Gauntt, who was duly elected and qualified to act as treasurer of Grant county, Indiana, for the term of two years, entered upon the duties of said office on the 2d day of August, 1869; that he was duly elected and qualified as his own successor in said office, and entered

the duties of said office of treasurer for his second term on the 2d day of August, 1871; that Jesse H. Nelson was duly elected and qualified as his successor at the end of his said second term, who entered upon the duties of his said office as such successor of said defendant on the 2d day of August, 1873; that said defendant, during his said first term of office as such treasurer, collected as taxes the sum of $611.28, which he failed to ac

upon

Gauntt v. The State, ex rel. Stout, Auditor.

count for, or pay over, of which sum so collected the sum of $506.39 was collected on and after June, 1870; that, during his second term of office, defendant, as such treasurer, collected as taxes the sum of $3,551.94, which he failed to account for or pay over, of which sum so collected during his second term, the sum of $1,538.10 was collected on and after June 1st, 1872; that said defendant made his reports to, and settlements with, the board of commissioners of said county of Grant, for the years ending respectively, May 31st, 1870, 1871, 1872 and 1873; which reports and settlements were made at the regular June sessions of said board for each of said years, and that the items and sums going to make up the amounts which said defendant so failed to account for, or pay over, as aforesaid, was not included in any of said reports and settlements, nor did they constitute any part of the sums and amounts so reported to, and settled for, with said board.

“ And as a further fact I find that there is an entry upon the record of the proceedings of said board, of an approval and determination by said board upon the report and settlement of said defendant for the year ending May 31st, 1870; but there is no such entry upon the records of said board of any finding, approval or determination by said board upon the said reports and settlements of the defendant for each of the years ending respectively May 31st, 1871, 1872 and 1873, but that all of said defendant's reports or settlements are entered upon the records of said board of commissioners aforesaid. I further find that neither of said adjudications was in any manner obtained by fraud or concealment.

“I find, as conclusions of law, upon the above found facts, as follows, to wit: That said settlements, so made by said board with said defendant, are fulland final adjudications upon all items and matters included in said reports to said board; but they are not adjudications upon such items and matters as were not therein included as aforesaid, and that all of said sums, so unaccounted for and not paid over, are barred by the statute of limitations, except said sum of $1,538.10 collected

Gauntt v. The State, ex rel. Stout, Auditor.

on and after June 15th, 1872. I therefore find that the defendant is indebted to the plaintiff in the sum of $1,538.10.”

Under the foregoing statute, if the referee is only required to report the facts, his report stands as a special verdict; but if, in addition to reporting the facts, he is required to state his conclusions of law thereon, then the report assimilates nearer to a special finding or a statement of the facts, and a statement of the conclusions of the law thereon, by the court. Gilmore v. The Board, etc., of Putnam County, 35 Ind. 344.

We see no ambiguity, inconsistency, or uncertainty in the faets found, that would prevent the court from rendering the proper judgment. If there are any deficiencies arising from omissions or incorrect findings, the remedy is by motion for a new trial, and not for a venire de novo. Graham y. The State, ex rel., 66 Ind. 386; Vannoy v. Duprez, 72 Ind. 26 ; Jones v. Baird, 76 Ind. 164; Ex Parte Walls, 73 Ind. 95.

If the finding contains a statement of the evidence and not of the facts, it may be set aside on motion for a venire de novo. Parker v. Hubble, 75 Ind. 580; Jones v. Baird, supra.

In the case at bar, the finding states the facts and not the evidence. There was no error in overruling the motion for a venire de novo.

The 6th specification of errors, overruling the motion for a new trial, is not referred to by appellant in his brief, and is therefore waived.

The 7th specification of errors is the overruling of appellant's motion for a judgment in his favor upon the statement of facts or special findings of the referee.

If the report is to be regarded in the light of a special finding, there is nothing in it that is contradictory to, inconsistent or irreconcilable with the general finding or conclusion, and there was no error in overruling the motion.

If the report is to be regarded as a statement of the facts, and the conclusions of law thereon,then the objection to the conclusions of law is to be taken advantage of, by excepting to the conclusions of law, which appellant did in the court below,

Rotan et al. v. Stoeber.

and has assigned the overruling thereof as error.

And appellant insists that the conclusions of law are erroneous, for the reasons that the referee did not find the fact that the board of commissioners had directed the auditor to bring the suit, and that he did not also find to what fund the indebtedness of defendant to plaintiff belonged.

We do not think that the direction of the board of commissioners was essential to the authority of the auditor to bring the suit, as for a part of the funds claimed, at least the trust funds, the statute gave him authority to sue without such direction, and as to the apportioning of the amount recovered among the different funds to which it belonged, that would be the duty of the auditor, after the collection had been made.

No objection was made or exception taken to the rendition or form of the judgment.

And we think there was no error in the conclusions of law.

From the facts found by the referee, appellant ought not to complain of the judgment.

We find no error in this record.
The judgment ought to be affirmed.

PER CURIAM.—It is therefore ordered, upon the foregoing opinion, that the judgment below be and the same is in all things affirmed, with costs.

No. 8903.

ROTAN ET AL. v. STOEBER. PRACTICE.— Evidence. Exception. An objection to the admission of evidence must be stated and an exception reserved in the trial court, to pre

sent the question of its admissibility in the Supreme Court. SAME.--Promissory Note.- Non Est Factum.—In an action upon a promis

sory note, where the defendant pleads non est factum, prima facie evidence of the execution of the note entitles it to be read in evidence.

VOL. 81.–10

Dutch et al. v. Boyd, Cashier.

SAME.— Witness.Hearsay.—Where, on cross-examination of a witness, it

appears that all he knew about what he had testified was hearsay, it is
proper for the court, on motion, to strike out his testimony.
From the Union Circuit Court.
T. D. Evans, for appellants.
B. Burke, for appellee.

ELLIOTT, C. J.—The questions requiring consideration arise upon the ruling refusing a new trial.

It is complained by appellants that the court erred in permitting the appellee to give certain testimony in reply to that introduced by them; but this complaint is unavailing for the reason that no objection was stated, nor any exception reserved, to the admission of the evidence.

There was no error in admitting the note sued upon in evidence although the appellants had pleaded non est factum. The evidence made at least a prima facie case for the appellee, and this entitled her to read the note to the jury.

Appellants produced a witness who testified, and this as the record shows was all that he did testify, in chief, that “Daniel T. Eckard signed John Rotan's name to that note." On cross-examination it appeared that all the witness knew about the matter was what Eckard had told him ; whereupon the appellee moved to strike out all of his testimony and the motion was sustained. This was right. The testimony was mere hearsay and was plainly incompetent.

Judgment affirmed.

No. 7988.

81 146 146 329

DUTCH ET AL. v. BOYD, CASHIER.
MORTGAGE.-Situs of Land.-State.- Presumption.-A deed or mortgage,

made in the form prescribed by the law of this State, which purports to have been executed and acknowledged in and between parties resident in the State, and contains nothing to indicate a contrary intention, will be presumed to be of land in the State.

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