Buchanan v. Milligan
| Decision Date | 11 December 1886 |
| Docket Number | 12,828 |
| Citation | 9 N.E. 385,108 Ind. 433 |
| Parties | Buchanan v. Milligan |
| Court | Indiana Supreme Court |
From the Huntington Circuit Court.
C. B Stuart, W. V. Stuart and W. H. Trammel, for appellant.
When this case was in this court the first time, the complaint was held bad and the judgment reversed. Buchanan v Milligan, 68 Ind. 118. On the return of the case to the court below, the complaint was amended and the amended complaint is again assailed. However, as we are without a brief from the appellee, we do not pass upon its sufficiency but reverse the judgment upon another point, preferring this course in order that the subject may be more fully discussed.
The judgment rests on a special finding of facts, and in such cases it is well settled that all the material facts essential to support a judgment must appear, for nothing can be supplied by intendment. Dixon v. Duke, 85 Ind. 434; Pittsburgh, etc., R. R. Co. v. Spencer, 98 Ind. 186, and cases cited; Indianapolis, etc., R. W. Co. v. Bush, 101 Ind. 582; Hasselman v. Carroll, 102 Ind. 153, 26 N.E. 202; Louisville, etc., R. W. Co. v. Balch, 105 Ind. 93, 4 N.E. 288; Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151, 5 N.E. 187.
In the finding before us, there is one material fact, at least, not properly stated in the finding, and that is the character and condition of the appeal bond on which the action is founded. The finding in this particular is defective. It is stated in the special finding that the defendant, Samuel Buchanan, executed the appeal bond, but it is not stated that it was the bond sued on, nor are the terms and conditions of the bond set forth. In this condition of the record, we can not ascertain that the appellant executed the bond sued on, nor can we ascertain the terms and provisions of any bond executed by him. Where a defendant is sought to be made liable on an appeal bond, which is averred to be lost, as is the case here, its terms and conditions must be so fully stated that the nature of the undertaking may be ascertained, and the extent of the liability of the obligor be made known as matter of law.
The judgment is reversed, with instructions to grant the appellant's motion for a new trial, as this will accomplish substantially the same result as the award of a venire de novo, and justice will best be done in this way.
Section 660, R. S. 1881, provides, among other things, that the Supreme Court "shall remand the cause to the court below, with instructions for a new trial, when the justice of the case requires it," and in several cases like this we have pursued that course. Shannon v. Hay, 106 Ind. 589, 7 N.E. 376; Sohn v. Cambern, 106 Ind. 302, 6 N.E. 813; Western Union Tel. Co. v. Brown, post, p. 538.
There are cases where it is evident from the face of the record that injustice would result from directing judgment on the special finding; and, in such cases, we think it is not only within our power, but that it is our duty, not to direct judgment upon the facts contained in the special finding, but to remand the case for a new trial. It is by no means every case where this course will or should be pursued; but where, as here, it appears from the whole record, that justice can only be done by directing a new trial, that course will be ...
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