Benefiel v. Aughe
| Decision Date | 20 February 1884 |
| Docket Number | 10,270 |
| Citation | 93 Ind. 401 |
| Parties | Benefiel et al. v. Aughe et al |
| Court | Indiana Supreme Court |
From the Clinton Circuit Court.
J. N Sims, A. E. Paige, S. O. Bayless, S. H. Doyal and P. W. Gard for appellants.
T. H Palmer, for appellees.
This was a suit by the appellees for partition. Two of the defendants disclaimed. The other two, Benefiel and John C. Fisher, answered separately by general denial. The issues were tried by the court who found for the plaintiffs and rendered an interlocutory judgment that partition be made.
The defendants then made their first motion for a new trial, alleging, as reasons therefor, that "the finding and decision of the court were not sustained by sufficient evidence, and were contrary to law." This motion the court overruled and the defendants excepted, but they filed no bill of exceptions as to this ruling of the court, and no time was given them to file such bill.
Upon the announcement of the finding and interlocutory judgment the defendants "objected to the finding and decree." This objection was overruled by the court. To this ruling the defendants excepted, and this exception they saved by a bill of exceptions, which sets out the finding of the court, and proceeds thus: "To which said finding of the court the defendants then and there objected, which said objection was by the court overruled, to which said ruling the defendants then and there excepted."
Commissioners of partition were then appointed, who reported that the lands were indivisible. To this report the defendants made no objection.
The record states as follows: "Which report is by the court approved, and upon said report the court finds that said real estate is not susceptible of division without injury thereto, and that it ought to be sold."
The defendants then made a second motion for a new trial, alleging the following reasons therefor:
1. The decision and judgment of the court is not sustained by sufficient evidence.
2. The decision and judgment of the court is contrary to law.
3. The court admitted improper evidence on behalf of the plaintiffs.
4. The court allowed the plaintiffs, over the objection of the defendants, to read from a copy, certified by the recorder of Clinton county, of the record of the recorder's office of Clinton county, what purported to be a recorded copy of a deed from Elias M. Fisher and wife to the plaintiffs and others for the property in question.
This motion was overruled, and the defendant excepted to this ruling, but filed no bill of exceptions showing the evidence. The court then made an interlocutory order for the sale of the lands. From this order the defendants appealed, and obtained sixty days time to file bill of exceptions, but they did not file any bill of exceptions at any time afterwards.
The errors assigned are as follows:
1. Overruling the first motion for a new trial.
2. Overruling the second motion for a new trial.
3. Overruling the appellants' exceptions and objections to the decree in favor of the appellees as per appellants' bill of exceptions, and in rendering such decree in favor of the appellees.
The third specification of this assignment of errors is supported by a bill of exceptions, which shows that the matter here complained of is the overruling of the following objection: "The defendants object to the finding and decree herein." Such an objection is too general to present any question. In State v. Swarts, 9 Ind. 221, there was an exception to the finding and judgment. The court said: A general objection either to finding or verdict without stating why amounts to nothing. Buskirk Pr. 111.
The appellees claim that the appellants, by failing to file any bill of exceptions showing the evidence, have waived their oral exceptions to the overruling of their motions for a new trial, and stand in the same position as if they had failed to take any exceptions to such overrulings. They claim that an exception to the overruling of the motion for a new trial, not perfected by a bill of exceptions, presents no question, and that a party, who has lost his position by failing to file a bill of exceptions, can not regain it by resorting to a bill of exceptions filed by his adversary. The record shows that the appellant filed no bill of exceptions showing the evidence, but that the appellee did file such a bill; the evidence being thus made part of the record is, we think, available for any party who has properly assigned errors or cross errors. See White v. Allen, 9 Ind. 561. It was decided in Makepeace v. Davis, 27 Ind. 352, that a party who had excepted and had taken leave to file a bill of exceptions, and had afterwards expressly waived such leave, could not, in reference to that matter, avail himself on appeal of a bill of exceptions filed by a co-defendant, but there was no such waiver in this case.
As to the first error assigned the court did not err in overruling the appellants' first motion for a new trial; but even if the ruling complained of were erroneous, it could have done no harm, because all the reasons presented for a new trial on the first motion are included among the reasons presented in support of the second motion for a new trial.
The second specification of error complains of the overruling of the second motion for a new trial. The first and second of the reasons for a new trial are, that the decision and judgment of the court are not sustained by sufficient evidence and are contrary to law. In such reasons the word "decision" is regarded as synonymous with "finding." Weston v. Johnson, 48 Ind. 1. And the defendants had a right to appeal from the interlocutory order of sale. Hunter v. Miller, 17 Ind. 88; Davis v. Davis, 36 Ind. 160.
The first and second reasons for a new trial will be further considered hereafter.
The third reason for a new trial, alleging the "admission of improper evidence," without specification, presents no question. Meek v. Keene, 47 Ind. 77.
The fourth reason for a new trial alleges error in "permitting the plaintiff to read from a copy, certified by the recorder of Clinton county, of the record of the recorder's office of Clinton county, what purported to be a recorded copy of a deed from Elias M. Fisher and wife to the plaintiff and others for the property in question."
The objection made to the introduction of this deed was as follows, as shown by the bill of exceptions:
"The certified copy offered in evidence bore no impression whatever of the official seal of the officer purporting to have taken and certified the acknowledgment of such deed, but in place of such impression of such seal had only attached to the certificate of acknowledgment the ink scrawl surrounding the letters L. S. thus [L. S.], and there was no other evidence that such ink scrawl and letters constituted a copy of the impression of the official seal of such officer. For which reason and for the further reason, as the defendants maintained, that such certificate of acknowledgment showed, on its face, that such officer was only authorized to take acknowledgments of deeds in and for Bedford county, Pennsylvania. The defendants objected to the introduction of such certified copy at the time it was offered, which objections the court overruled.
The certified copy showed that the deed was executed in the presence of two witnesses, and was dated October 19th, 1864, and the acknowledgment and certificates were as follows:
[L. S.] "O. E. Shannon, Recorder.
The certificate of acknowledgment states that the officer is authorized to take the acknowledgment of deeds, and it purports to bear the officer's official seal. The presumption is, in such a case, in the absence of evidence to the contrary, that the recorder of Clinton county did his duty (Thompson v. Doty, 72 Ind. 336), and that the certificate of the recorder of Bedford county bore his official seal, and it was not necessary in such a case that the recorder of Clinton county should impress on his record a fac simile of the seal of the recorder of Bedford county, Pennsylvania; nor that his certified copy of the record should "bear an impression of such official seal of the recorder of Bedford county." The letters L S., in a scrawl, thus, [L. S.], are a sufficient representation of such official seal both in the record and in the certificate of the copy thereof. The other objection, to wit, that the certificate of the Bedford county recorder showed on its face that he was only authorized to take acknowledgments of deeds in and for said...
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First Nat. Bank of Peoria v. Farmers' & Merchants' Nat. Bank of Wabash
...propositions we make answer: (1) That as it has been held that a party may take advantage of his adversary's bill of exceptions (Benefiel v. Aughe, 93 Ind. 401), there certainly can be no objection to a co-appellant manifesting the fact of error by a bill of exceptions filed by his co-party......
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First Nat. Bank of Peoria v. Farmers' & Merchants' Nat. Bank of Wabash
...propositions we make answer: (1) That as it has been held that a party may take advantageof his adversary's bill of exceptions (Benefiel v. Aughe, 93 Ind. 401), there certainly can be no objection to a co-appellant manifesting the fact of error by a bill of exceptions filed by his co-party;......
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Swift v. Harley
...arises from the fact that an officer or trustee is presumed to do his duty. See Cummins v. City of Seymour, 79 Ind. 491;Benefiel v. Aughe, 93 Ind. 401;Baker v. Merriam, 97 Ind. 539;State v. Sutton, 99 Ind. 300;Enos v. State, 131 Ind. 560, 31 N. E. 357. An administrator is an officer of the ......
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Swift v. Harley
... ... officer or trustee is presumed to do his duty. See ... Cummins v. City of Seymour, 79 Ind. 491, 41 ... Am. Rep. 618; Benefiel v. Aughe, 93 Ind ... 401; Baker v. Merriam, 97 Ind. 539; ... State, ex rel., v. Sutton, 99 Ind. 300; ... Enos [20 Ind.App. 622] v. State, ex ... ...