Barnard v. Flinn
| Decision Date | 29 November 1856 |
| Citation | 8 Ind. 189 |
| Parties | Barnard and Others v. Flinn and Wife |
| Court | Indiana Supreme Court |
From the Morgan Circuit Court.
The judgment is reversed with costs. Cause remanded.
D McDonald and W. A. McKenzie, for appellants.
J. W Gordon and W. R. Harrison, for appellees.
This was a bill in chancery by Flinn and wife against Sarah J Barnard, widow and administratrix of Benjamin F. Barnard, deceased, and Ann E. and Dora F., infant heirs of said deceased, of whom the said Sarah J. was also guardian at law. The case made by the bill is as follows:
The plaintiffs were confined in the jail of Morgan county on a charge of felony. From the answer and proofs it appears that they were charged with murder. For the purpose of raising money to aid in their defense, they agreed with said Benjamin F. Barnard to convey to him certain lands, the title to some of which was in Flinn, and of other portions, the fee was in his wife. The object of this conveyance was to enable Barnard to sell the lands to raise money for the grantors. It was at first proposed that Barnard should execute notes for the consideration-money; but Barnard objecting to this, it was agreed that he should execute an agreement in writing, stating the object for which the lands were conveyed to him. On the 6th day of June, 1851, they executed conveyances to Barnard for the lands, the consideration mentioned in the deeds being 1, 250 dollars, no part of which was ever paid. He neither executed the notes for the consideration, nor any agreement stating the object of the conveyance to him. A few days after the execution of said conveyances Barnard was suddenly attacked with cholera and died; and said Sarah J., as the widow and administratrix of the deceased, and as guardian of his infant heirs, had taken possession of the lands, and had received the rents and profits. The plaintiffs had demanded possession of the lands and an account of the rents and profits, which were refused.
Prayer that the deeds be set aside; for a re-conveyance of the land; for an account and payment of the rents and profits; for an injunction, and general relief.
The answer of Sarah J. Barnard admits the conveyances, and alleges that they were upon a valuable consideration fully paid; that Flinn and wife at the time of the conveyances were confined in prison on a charge of murder; that soon after the conveyances were made Flinn broke jail and escaped, and still remains a fugitive from justice; that he was fully able to employ counsel for his defense without sacrificing his property; admits the death of Barnard, and her appointment as administratrix of his estate and guardian of the children. All the other allegations of the bill are denied. On behalf of the infant defendants, a guardian ad litem was appointed, who filed the common answer. To the answer of Sarah J. Barnard a replication was filed.
At the May term, 1853, of the Morgan Circuit Court, which commenced after the R. S. of 1852 were in force, the Hon. James Hughes, judge of that Court, having been of counsel in the cause before his election as such judge, the defendants objected to the trial of the cause before him, in consequence of his interest as counsel, whereupon a special term of said Court was ordered to be held on the 27th day of June following, and the Hon. John Cowgill, judge of the Putnam Common Pleas, was appointed to hold said term, and this cause was set down for hearing at said special term, at which time the cause was tried before Judge Cowgill. There was a finding and judgment for the plaintiffs according to the prayer of the bill, and a new trial refused.
It is assigned for error, that Judge Cowgill had no jurisdiction to try the cause; because the trial was not appointed to be held within thirty days after the service of process, as directed by the 2 R. S. p. 5, s. 3. We have heretofore decided that that statute was merely directory, and that a special term appointed to be held more than thirty days after service of process, was authorized. Murphy v. Barlow, 5 Ind. 230; Ketcham v. New Albany, etc., R. R. Co., 7 Ind. 391.
The defendant, Sarah J. Barnard, filed in the Circuit Court the following interrogatories propounded to the plaintiff, Hiram Flinn, which she prayed that he might be compelled to answer:
In support of the interrogatories she filed an affidavit stating that she verily believed the purchase-money for said lands had been fully paid by her deceased husband to the said Hiram; that she knew of no witness by whom the payment could be proved, except by him; that she was desirous of getting his evidence in her behalf; that she had reason to believe that his whereabouts was known to his counsel in that suit; wherefore she prayed that proceedings might be stayed until Flinn's counsel should disclose his place of residence, and his evidence be taken either upon interrogatories or on commission. She further stated that she verily believed she had just merits in her defense; that she had not before attempted to get the evidence of said Flinn, on account of her belief in the futility of such attempt, said Flinn having absconded to parts unknown to her, in June, 1851, before the commencement of this suit; that she had recently learned that the residence of Flinn was known to the counsel of the plaintiffs, or one of them; and that she desired to have his evidence in support of the defense in said suit.
On the filing of the interrogatories and affidavit, the plaintiffs moved the Court, in case the cause was delayed to obtain an answer,...
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