Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

Towell et al. v. Hollweg et al.

in computing the time of the 180 days' stay of execution, the day on which the judgment was stayed must be included, because execution could have been issued on the day the judgment was signed, and that must be counted as one day. And in the opinion it is added: “This is not a case where the statute requires an act to be done, like the granting of a new trial, for example, within a given number of days.” The case in 24th Indiana, supra, is based upon this for authority.

In the case of Noble v. Murphy, 27 Ind. 502, it was held that in cases of appeal from the judgment of a justice of the peace, where the statute required the appeal to be taken within thirty days from the rendition thereof, the general statute excluding the first day and including the last applied.

To the same effect are the cases of Faure v. The United States Erpress Co., 23 Ind. 48, and Swift v. Tousey, 5 Ind. 196.

In the case of Hathaway v. Hathaway, 2 Ind. 513, where the statute allowed the justice of the peace to grant a new trial within four days from the rendition of the judgment, in computing the four days it was held that the day on which the judgment was rendered should be excluded; and in the opinion the following language is used: “Had the statute been that a justice might grant a new trial within one day after the rendition of judgment, nobody would have contended that the day on which judgment was rendered should be counted in computing the time. The rule should be the same where the statute requires it to be done within four days."

The same rule has been applied to serving a summons. Womack v. McAhren, 9 Ind. 6; Martin v. Reed, 9 Ind. 180; Blair v. Davis, 9 Ind. 236.

The same rule has been applied to the time of filing bills of exceptions. The State, ex rel. McCoy, v. Thorn, 28 Ind. 306 ; Byers v. Hickman, 36 Ind. 359. Where a thing is required to be done between two specified days, or from one specified day to another, then both are to be excluded. Cook v. Gray, 6 Ind. 335; Newby v. Rogers, 40 Ind. 9.

In the former case it was held that “The code provides that

Towell et al. v. Hollweg et al.

the time within which an act is to be done, as therein provided, shall be computed by excluding the first day and including the last. * But this, as a rule of computation, relates exclusively to statutory time, and does not apply to ordinary contracts."

In the case of Fox v. The Allensville, Center Square and Vevay Turnpike Co., 46 Ind. 31, it was held that a “publication made on the 2d of March, for payment on the 1st of April, would, by adopting the ordinary rule of including one of the days and excluding the other, be a publication thirty days before the specified time of payment.” It will be observed that this case did not arise under the provisions of the code proper, but the decision of the question is based upon its provisions as the “ordinary rule.”

In the case of Benson v. Adams, 69 Ind. 353, it was held that, in computing the time on a bill of exchange, the day of its execution should be excluded, and the third day of grace included. The court say:

“By section 787 of the code, in all legal proceedings touching the administration of justice in courts, it is enacted that "The time within which an act is to be done, as herein provided, shall be computed by excluding the first day and including the last.' *

* “This, we believe, is the uniform rule of computing time on a bill of exchange.”

In the same case, it was held that a day is a unit of time, commencing at 12 o'clock at night and ending at 12 o'clock at night. That “fractions of a day in statutes, or legal proceedings, or in contracts, are not generally considered; but when the rights of parties depend upon the precedence of time in the same day, or upon a given hour or fraction of a day, it may be alleged or proved, as any other fact.”

The statute under consideration, requiring chattel mortgages to be recorded within ten days after their execution,means within ten days after the time of their execution, and that means within ten days after the day of their execution. Therefore, in applying the general tenor of the foregoing decisions of this court to the question under consideration, we conclude that

Buckles v. Buckles.

in the computation of the ten days' time in which a chattel mortgage must be recorded, the day of its execution should be excluded. And as this rule has been established in all cases provided for in the code, it should be made uniform in all cases, except where otherwise expressly provided for by the language used.

We think the mortgage in this case was recorded within the time required by the statute, and was valid.

The court below did not err in its conclusions of law.
The judgment ought to be affirmed.

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

No. 9354.

[blocks in formation]

BUCKLES v. BUCKLES.
DIVORCE. — Alimony.-Supreme Court.—The Supreme Court will not disturb

an allowance for alimony, unless there has been an abuse of discretion
by the trial court.
From the St. Joseph Circuit Court.
L. Hubbard, J. B. Arnold and J. P. Creed, for appellant.
A. Anderson and W. G. George, for appellee.

ELLIOTT, C. J.-Appellant sued for a divorce; the appellee filed a cross bill and the divorce was granted to him.

The appellant claims that the alimony allowed her is insufficient. The amount to be allowed as alimony is very much within the discretion of the trial court, and this court will interfere only in cases where the discretion has been abused. Powell v. Powell, 53 Ind. 513; Conn v. Conn, 57 Ind. 323. We have looked into the evidence, and are satisfied that there was no abuse of the discretionary powers vested in the court below.

Judgment affirmed.

Harness et al, r. Harness et al.

No. 8989.

81 160 156 76

HARNESS ET AL. v. HARNESS ET AL.

SUPREME COURT.- Venire de Novo.-Special Verdict.Harmless Error.–

Where a special verdict is defective, in that it fails to find all the facts
necessary to cover the issues, and yet the court below renders such a
judgment as would be proper only if the facts not found had been found
as the appellant has averred them to be, in his pleadings, he can not
complain in the Supreme Court that a venire de novo was refused, the
error being, in the end, harmless as to him.
From the Howard Circuit Court.
D. P. Baldwin and D. D. Dykeman, for appellants.
N. R. Lindsay, M. Bell and W. C. Purdam, for appellees.

NIBLACK, J.-Suit by Louisa Harness, Sarah J. Harness,
Addison A. Harness, Mary E. Harness, Ida M. Harness, Rosa
D. Harness, Margaret Harness, and Thomas Harness, against
Benjamin F. Harness, William W. Harness and Lewis W.
Harness, for the partition of several tracts of lands, of which
Andrew J. Harness, an intestate, died seized. The said Louisa
was the widow, and all the other parties were the children of
the decedent.

This cause has heretofore been twice before this court. Harness v. Harness, 49 Ind. 384; Harness v. Harness, 63 Ind. 1. As there was some amendment in the pleadings after the cause was remanded the last time, we find it necessary to make a brief statement as to the pleadings and issues upon which the last trial was based.

The complaint, amongst other things, charged that the decedent had, in his lifetime, purchased real estate for his sons William and Lewis, of the value of four thousand dollars for each, and had caused such real estate to be conveyed to them respectively, as advancements in full of their shares of his estate. A supplemental complaint was filed alleging that, since the first trial of the cause, Ida M. Harness, one of the plaintiffs, had died unmarried, intestate and without issue, leaving the remaining parties her only heirs at law.

Harness et al. v. Harness et al.

Benjamin F. Harness answered separately, in general denial. The defendants William and Lewis together answered :

1. In general denial.

2. Specially denying that any real estate was conveyed to them or either of them, as an advancement from their father, and averring that the property received by them from him was upon another and different consideration. 3. Averring that the plaintiffs had taken, carried away

and converted to their own use timber of various kinds, growing on the lands described in the complaint, of the value of two thousand dollars, which they, said defendants, prayed might be taken into account in making partition of said lands.

The defendants William and Lewis also set up by way of counter-claim, that since the commencement of this suit the said Lewis had purchased and become the owner of all the interest in the lands in the complaint mentioned, which had descended to their co-defendant Benjamin F. Harness.

The plaintiffs replied in denial of the special matters set up as above in defence, and answered the counter-claim, admitting that the said Lewis had purchased the interest of the said Benjamin in the lands, but denying some other things averred in said counter-claim. The cause was tried by a jury and a verdict was returned as follows:

“We, the jury, find for the defendants; that Andrew J. Harness purchased with his own means, and caused to be conveyed to defendants William W. Harness and Lewis W. Harness, each a farm of the value of four thousand dollars; that the same was intended as a gift to them and not as an advancement. We further find that the defendant Lewis W. Harness has purchased and is the owner of the interest of Benjamin F. Harness in said real estate, and that partition be had accordingly.”

The plaintiffs thereupon moved the court for a venire de noro, upon the alleged grounds that the verdict, returned as above, did not cover all the issues involved in the cause, and

VOL. 81.-11

« ΠροηγούμενηΣυνέχεια »