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State, ex rel. Nave, ?". Hawkins et al.

levy the execution upon personal property and wrongfully levied it upon real estate encumbered for more than its value.

The second paragraph of the answer is not very carefully drawn, but it contains an allegation which makes it good. The allegation to which we refer is this: “ These defendants admit that it is true that no levy was made upon the personal property, but they aver that said Samuel L. Hawkins offered and intended to levy upon said personal property, and would have so levied upon the same and taken it into his possession, and have offered the same for sale as required by law, but that the relator upon being notified of the condition of said property, expressly ordered and directed said Samuel L. Hawkins not to make such levy, and ordered him to levy upon the real estate of said Mahoney.” Confessing this allegation by the demurrer, the appellant admits that the sheriff did exactly what the relator required him to do, and this being true there is no cause of action. An execution creditor can not successfully insist that a sheriff who obeys his orders shall respond in damages, because loss resulted from such obedience. The appellant's relator is not in a situation to complain of the sheriff for having done that which he was directed to do.

Counsel for appellant is right in his assertion that the answer contains more than one ground of defence, but he is radically wrong in his conclusion that, therefore, a demurrer will lie. Where the answer improperly blends in a single paragraph different and distinct grounds of defence, the remedy is not by demurrer but by motion.

In the course of the trial the appellant gave in evidence detached parts of various records, and the appellees afterwards gave in evidence the remaining parts of these records. There was no error in permitting the appellees to do this. The rule is that all of the record, and not merely fragmentary parts, shall be put in evidence. As said in Miles v. Wingate, 6 Ind. 458, “A record is an entire thing, and if admissible for any purpose, all its parts are received.” Coats v. Gregory, 10 Ind. 345; Foot v. Glover, 4 Blackf. 313; Ve Nutt v. Dare,

State, er rel. Nave, v. Hawkins et al.

8 Blackf. 35; Jenkins v. The State, 78 Ind. 133; 1 Taylor Ev. 657. This rule applies only to such matters as are legitimately a part of the record, and not to mere collateral papers incidentally connected with the proceedings.

Appellees were permitted to put in evidence the record of an action of replevin brought against the sheriff. The property replevied had been seized upon an execution issued on the relator's judgment, and we think the evidence was admissible for the purpose of showing why there had been no sale of this property, why it was useless to again seize it upon execution, and how the levy had been disposed of. The judgment was not conclusive against the relator, for he was not a party, nor was he notified to defend, but it was evidence of the fact that, by judicial process, the property was taken from the sheriff. The case is closely analogous to that of Rhode v. Green, 26 Ind. 83, where it was held that it is competent for the plaintiff, in an action for a breach of the covenant of seizin, to give in evidence the judgment obtained against him by the claimant, although his grantor was not a party. Wilson v. Peelle, 78 Ind. 384.

The bill of exceptions filed in the action of replevin brought against the sheriff was not such a part of the record as entitled it to admission. Where a bill of exceptions is filed for the purpose of exhibiting the evidence, it does not become a part of the record in the sense that the pleadings and entries upon the order book and dockets do. The pleadings and entries are necessarily a part of the record; indeed, they in strictness constitute the record. Without them, the admissions and allegations of the parties could not be understood, nor the scope and effect of the judgment be fully apprehended. This is not true of the bill of exceptions. The office of the bill of exceptions is altogether different from that of the entries and pleadings. In truth, a bill of exceptions is only proper when it becomes necessary to make some fact or proceeding appear which strictly and properly forms no part of the record. It was not competent for the appellees to read the bill of excep

Dunn et al. 1. Hubble.

tions under mention in evidence, but, notwithstanding this error, we can not reverse the judgment. Under the issues and evidence, the reading of the bill could not have done the appellant any injury. But if this were not so, his objection was not properly stated. The objection stated and reserved was not such as presented the question of the admissibility of the bill of exceptions, but was directed entirely to the competency of every part of the record. .

We have given the evidence a careful examination, but find no reason which will warrant us in departing from the settled rule that the finding of the trial court will not be set aside where there is evidence sustaining it.

Judgment affirmed.
Opinion filed at the November term, 1881.
Petition for a rehearing overruled at the May term, 1882.

No. 8893.

DUNN ET AL. v. HUBBLE.

SUPREME COURT.— Record. Filing of Bill of Exceptions.—Where time is

given beyond the term, in which to prepare and file a bill of exceptions, the record must affirmatively show that it was not only signed but filed within the time limited, or it will not be considered by the Supreme Court as constituting a part of the record. From the Hamilton Circuit Court. W. Neal and J. F. Neal, for appellants. T. J. Kane and T. P. Davis, for appellee.

Howk, J.—This was a suit by the appellee against the appellants, in a complaint of two paragraphs. The first paragraph counted upon a promissory note for four hundred and two dollars, executed by said Madison L. Dunn, and payable to the appellee, and alleged to be due and wholly unpaid. In

Dunn et al. v. Hubble.

the second paragraph of her complaint the appellee sued upon the same note, alleging that it was given for the unpaid purchase-money of certain real estate, particularly described, in Hamilton county, claiming a vendor's lien on such real estate, as security for the payment of the note and interest, and praying that such lien might be enforced by the judgment of the court. The cause was put at issue and tried by the court, and a finding was made for the appellee; and over the appellants' motion for a new trial, and their exception saved, the court rendered judgment accordingly.

The overruling of their motion for a new trial is the only error assigned by the appellants in this court. The causes assigned for such new trial were, that the finding of the court was not sustained by sufficient evidence, and was contrary to law, and that the court erred in rendering judgment for so large an amount.

It will be readily seen, that these causes for a new trial will present no question for the decision of this court, if it can be said, as the appellee's counsel claim, that the evidence on the trial below is not in the record. The record shows that, upon the rendition of the judgment, the appellants were given ninety days in which to file their bill of exceptions; and the transcript contains what purports to be a bill of erceptions containing the evidence. But the point is made by appellee's counsel, and we think it is well made, that there is no record of the court, statement of the clerk, or other evidence in the record, that the bill of exceptions was filed within the time allowed by the court, or, indeed, that it was ever filed at any time. “ It is settled that where time is given extending beyond the term, in which to prepare and file a bill of exceptions, the record must affirmatively show that it was not only signed but filed within the time limited, or it will not constitute a part of the record; and it is not sufficient that the clerk certify that the filing of the bill was within the time given, but he must certify the date of the filing, so that the Supreme Court may determine whether it was within

Brown v. Fodder et al.

the time given.” Buskirk’s Practice, p. 144, and cases cited. Sherlock v. The First National Bank of Bloomington, 53 Ind. 73.

We are of the opinion, therefore, in the case now before us, that the bill of exceptions, purporting to contain the evidence, does not constitute a part of the record. In the absence of the evidence, we can not say from the record, that the court erred in overruling the appellants' motion for a new trial for any of the causes assigned therefor. All the presumptions are in favor of the decision of the trial court, until and unless it is shown by the record to have been erroneous, and, therefore, we are bound to say, in this case, that the court committed no apparent error in overruling the motion for a new trial. Myers v. Murphy, 60 Ind. 282; Stott v. Smith, 70

, Ind. 298; Bowen v. Pollard, 71 Ind. 177.

The judgment is affirmed, with costs.
Opinion filed at the November term, 1881.
Petition for a rehearing overruled at the May term, 1882.

No. 9360.

81 491 147 397

81 491

BROWN v. FODDER ET AL. TAXES.— Invalid Tar Sale Lien.-Statute of Limitations.—The right of a pur- 1165 286

chaser at an invalid tax sale to enforce a lien against the land is barred by the lapse of fifteen years, not by the five years' limitation prescribed in the 250th section of the assessment law, for an action to recover the

land itself. Acts 1872, p. 117; 1 R. S. 1876, p. 127. SAME.-Subsequent Tares.- Voluntary Payment.—When the right to enforce

a lien upon land for the amount bid at an invalid tax sale, has been lost by lapse of time, a subsequent payment of taxes on the land will be deemed a voluntary payment, furnishing no cause of action, and in

effective to restore the original right. SAME.- Pleading.– Limitation.- Evidence.--When, under a complaint in

ejectment, the plaintiff seeks, under sections 256 and 257 of the assessment law of 1872, Acts 1872, p. 119, 1 R. S. 1876, p. 129, to enforce a lien for the amount of his bid at an invalid tax sale, the answer of general denial admits proof of all defences, including the statute of limitations. From the Spencer Circuit Court.

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