Nitche v. Earle
| Decision Date | 29 January 1889 |
| Docket Number | 13,068 |
| Citation | 19 N.E. 749,117 Ind. 270 |
| Parties | Nitche v. Earle |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled March 5, 1889.
From the Lake Circuit Court.
Judgment affirmed, with costs.
J Kopelke, for appellant.
C. F Griffin, for appellee.
This action was commenced by appellee against appellant on the 2d day of March, 1881, in the Lake Circuit Court, to recover the possession of, and quiet title to, a tract of land in Lake county, Indiana.
Issues were formed and the case tried by the court at the November term, 1881, and judgment rendered for appellee upon a special finding of facts. From that judgment appellant, Nitche, appealed to this court, and the cause was reversed. Nitche v. Earle, 88 Ind. 375. Under the direction of this court the court below, at the September term, 1883, entered judgment for appellant upon the special finding of facts. At the February term, 1884, the plaintiff obtained a new trial as of right. At the April term, 1884, appellant appeared to the action and moved the court to vacate the order granting the new trial, for the insufficiency of the bond, which motion was overruled, and at the September term, 1884, appellant moved to vacate the order granting a new trial, for failure of the plaintiff below, the appellee, to give notice thereof, which motion was overruled, to which ruling appellant excepted. Another trial was had at the February term, 1886, and judgment rendered in favor of appellee. A motion was made by appellant and his co-defendants for a new trial, but the motion was overruled and this ruling was excepted to by appellant.
The errors assigned are, that the court erred in overruling the motion of appellant to vacate the order granting the appellee a new trial, for the reason that no notice was given thereof, and the overruling of the motion for a new trial.
There was no error in overruling appellant's motion to vacate the order granting a new trial.
In the case of Stanley v. Holliday, 113 Ind. 525, 16 N.E. 513, this court has placed a construction on section 1065, R. S. 1881, and the court, in that case, says:
Under this authority, the action of the court was right in granting the new trial and overruling appellant's motion to vacate for failure of notice.
Several questions are presented upon the overruling of the motion for a new trial. The first is the admission by the court in evidence, over objection of appellant, of a certified copy of the record of a patent by the State of Indiana to George Earle for the real estate described in the complaint, which record of patent was certified to by James H. Rice, auditor of state. It is urged that it is shown on the face of the record not to be the copy of any record; that for all that it shows on the face of it, it may be the original patent; that it has the signatures of the Governor and secretary of state, and nowhere has a certificate of the secretary of state that he recorded it; and counsel insist that unless the instrument shows, by official entries or certificates by officers who made it, that it is a record, it is no record; that a volunteer statement by the present keeper, giving his opinion about it, will not make it a record; that, by the original law, these records were to be kept in the office of the secretary of state, and that the certificate of the auditor of state should show how he came by the book.
The instrument offered and admitted in evidence was a certified copy of letters-patent to George Earle for the lands in question in this case, the auditor of state certifying the same to be "a full, true and complete copy of the record of letters-patent, executed and issued on the 12th day of January, 1857, by the State of Indiana to George Earle, for the lands therein described, as the same appears on page 379, of the record of swamp lands, vol. 33, range west, now on file in my office, and of which record I am the legal custodian," properly signed by the auditor of state and seal attached.
By section 5628, R. S. 1881, all records pertaining to swamp lands were transferred from the office of the secretary of state to the office of the auditor of state.
Section 462 prescribes the manner in which all copies of records in public offices shall be certified, and makes them admissible in evidence. The statute makes the auditor of state the proper custodian of the records of letters-patent, which were formerly recorded by the secretary of state and kept in his office, and this copy of the record was properly authenticated.
Section 4, 1 G. & H., p. 607, made it the duty of the secretary of state to record these letters-patent in books to be kept in his office. Thus it was first provided by statute and made the duty of the secretary of state to record the letters-patent in a book in his office, and afterwards this record was by statute transferred to the office of the auditor of state.
Courts take knowledge of the public statutes of the State, and, in the absence of evidence to the contrary, the presumption of law is that the officers discharge their duties, and the presumption in this case would be that the secretary of state recorded the patent, and that the record book containing the same had been by him turned over to the auditor of state. Evans v. Browne, 30 Ind. 514; Ward v. State, 48 Ind. 289; Evans v. Ashby, 22 Ind. 15.
The next question presented is, the appellant called one Johannes Kopelke as a witness, and offered to prove that he had examined the book from which the auditor of...
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