Board of Comm'rs of Huntington County v. Brown
| Decision Date | 31 May 1860 |
| Parties | The Board of Commissioners of Huntington County v. Brown. the Board of Commissioners of Huntington County v. Weasner |
| Court | Indiana Supreme Court |
From the Huntington Court of Common Pleas.
J. U Pettit and C. Cowgill, for appellants.
J. R Coffroth, for appellee.
Motion for a rehearing. An opinion was pronounced, and a judgment of reversal rendered, in this case, at the May term, 1858 [1]. At the present term by affidavit on the part of the appellee, it is made to appear that the record in the cause was filed in this Court on the 15th of November, 1855, and notice issued, which was served a few days thereafter. At the November term, 1856, the appellant was called and the appeal dismissed. On the 19th of May, 1857, the record was refiled, and on the 5th day of May, 1857, the defendant was called, and the case submitted by the appellant. That after the refiling no notice was given nor appearance entered.
Upon the dismissal of an appeal, the parties are no longer in Court; and the refiling of the record is the institution of a new suit, at least so far as to require that notice shall be given to the defendant, &c. It is not shown by the record, in the case at bar, that any such notice was given, nor appearance entered after the refiling of the record. The affidavit was not filed until after the expiration of sixty days from the rendition of the judgment, within which time, under the statute, a petition for a rehearing must be filed.
Under these circumstances it is too late to seek relief from the judgment here rendered, by an application for a rehearing, in the precise form in which that remedy has usually been resorted to, even if it was at any time the proper mode of proceeding.
Taking the affidavit to be true, the appellee was not in Court when the case was submitted; evidently the Court was in error as to that fact, if the affidavit is correct; and the question is, what is the remedy? Our statute, in terms, has not provided any.
In some states the difficulty in analagous cases is, we believe, reached by writ of error coram nobis; in other Courts by motion, supported by affidavits, if need be. Pickett's Heirs v. Legerwood, 7 Peters 144.--2 Tidd's Pr. 1056.--De Witt v. Post, 11 Johns. 460.--Steph. Plead. 151.--Archb. Pr. 212.--Bouv. Law Dic. 664.
It would, therefore, appear that two modes have been resorted to by Courts to correct judgments of the same Court, based upon certain errors of fact occurring before such judgment.
So far as we are informed, no case has occurred in which either mode has heretofore been resorted to in this Court.
By the statute organizing this Court, authority is given to "establish modes of practice which may be necessary in the exercise of its authority;" and further, "to establish regulations respecting proceedings which are requisite in such Court, in the exercise of its authority, not specially provided for by law." 2 R. S. p. 2.
If a rule should be granted upon the appellant to show cause, if any can be shown, why the judgment and submission shall not be revoked and set aside for the error complained of, the answer might be in the form of an affidavit, and thus make an...
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