Andrews v. Ohio & Mississippi R.R. Co.
| Citation | 14 Ind. 138 |
| Parties | Andrews v. The Ohio and Mississippi Railroad Company |
| Decision Date | 30 May 1860 |
| Court | Indiana Supreme Court |
From the Jefferson Circuit Court.
The judgment is affirmed with 5 per cent. damages and costs.
H. W Harrington, for appellant.
S Judah, for appellees.
Suit for two installments of a stock subscription. Verdict and judgment for the plaintiffs below.
A great number of points were reserved and made for the consideration of this Court.
First. Interrogatories were filed with the answer, and an order obtained, that the president and secretary of the company should answer the same under oath; and it is objected that the affidavits to such answer are not properly authenticated; nor was the oath administrated by a person authorized, &c.
The affidavit of the president was made before, and certified by, a commissioner, in the city and state of New York, appointed under the 1 R. S. p. 231; and the case of Draper v. Williams, 8 Blackf. 574, is relied upon to sustain the objection. That case was decided under the R. S. of 1843, p. 200, which was not the same as the one now in force. Proof of identity is not now necessary.
The affidavit of the secretary was made before a notary public, in Cincinnati; and it is insisted that such officer was not authorized, &c. To this it is answered that § 281, p. 91, and § 289. p. 95, 2 R. S., do not conflict; but that the first should govern as to this authentication, as well as in reference to the power to take, &c. This point it is not necessary to decide, because, in our opinion, the statute of Ohio, introduced on the trial, sufficiently showed that, in that state, the officer named had authority to take and certify the affidavit, and § 281 then makes such certificate presumptive evidence in this state.
The Court overruled a motion to strike out a part of the answers of the interrogatories. This raises the second point.
The question was as to the cost of the construction of the road. The answers, after stating cost, gave the reasons for the increase over the amount contemplated, &c. The ground of the motion was, as to the latter part, first, that it was mere opinion; second, that it was not relative matter in avoidance. 2 R. S. p. 97.
Perhaps the parts of the answers pointed out, were subject to the objections named; but as the statutes were immaterial and could not, as we see, influence the decision, the judgment should not be reversed in consequence of the refusal to strike out.
Upon the trial the plaintiffs offered in evidence a copy of the record of the acts of the corporation, in ordering calls, &c. Annexed was an affidavit under 2 R. S., § 284, p. 93.
It is insisted that this statute has reference only to corporations having their principal office and place of business in Indiana. We do not think so. The statute is general; lays down a rule as to evidence that shall be received and the force thereof, without reference to the place where the evidence may have been taken.
It is further said that in the action of the board on call number nine, no place, or per cent. of payment, was fixed. To this it is answered, by the opposite party, that the charter limited the amount that could be demanded per annum to fifteen per cent.; that ten had already been called; that in the notice, and not the call, by the charter, it is required that the amount, time, and place of payment should be specified. We think, under the circumstances, the call was sufficiently explicit.
The plaintiff, to prove notice of said calls, introduced copies thereof, and the affidavit of one styling himself a clerk or book-keeper in the office of the newspaper in which the publication was stated to have been made. Two objections were made, which we will notice. First, that the charter authorized calls by giving sixty days' notice in some newspaper, &c.; that this was inserted but a single time whereas it should have been continuously, &c. Second, if the publication was proper, the proof thereof, was insufficient, because it could not be made by affidavit. As to the latter objection, the statute, 2 R. S. § 287, p. 94, provides as to the proof of advertisements in certain cases, and Unthank v. The Henry, &c., Turnpike...
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