Carrico v. Tarwater
| Decision Date | 17 September 1885 |
| Docket Number | 12,383 |
| Citation | 2 N.E. 227,103 Ind. 86 |
| Parties | Carrico et al. v. Tarwater |
| Court | Indiana Supreme Court |
From the Sullivan Circuit Court.
The judgment is affirmed, with costs.
C. E Barrett, W. S. Maple and R. V. Railsback, for appellants.
J. M Humphreys and T. J. Wolfe, for appellee.
This was a suit by the appellants against the appellee to obtain the partition of certain real estate in Sullivan county whereof they alleged that they were the owners in fee simple of the undivided one-half in value, and that appellee was the like owner of the residue. Issue was joined by appellee's answer in denial of the complaint, and the trial of the cause by the court resulted in a finding for the appellee, the defendant below. Over the appellants' motion for a new trial, judgment was rendered against them for appellee's costs, and denying the prayer of their complaint.
The overruling of their motion for a new trial is the only error of which the appellants complain in this court.
On the trial of this cause, the appellee offered in evidence the record and files of the court below, at its December term, 1867, in a former suit between the parties to this action for the partition of the real estate now in controversy, and other lands, in which former suit the appellee, Tarwater, was plaintiff and the appellants herein were defendants, for the purpose of proving a former adjudication of the matters in issue in the pending suit. Over the objections and exceptions of the appellants, this offered evidence was admitted by the court, and the rulings of the court, in the admission of such evidence, were assigned, as errors of law, as causes for a new trial. The first objections urged by the appellants' counsel, in argument, to the admission of the record of the former partition, are, that "there was no valid or legal service upon defendants, and because the court had no jurisdiction over the persons of the defendants in such partition proceedings." It is shown by the record in the former suit, that a summons, issued thereon on November 8th, 1867, was returned by the sheriff of Sullivan county, "Served November 15th, 1867, by reading to Thomas Carrico in person." As to the other appellants, defendants in the former suit, the record given in evidence shows that due proof was made to the court, "that the pendency of this cause has been duly advertised by publication in the Sullivan Democrat, a weekly newspaper of general circulation, printed and published in Sullivan county, for three weeks successively, for more than thirty days prior to the first day of the present term of this court as against the non-resident defendants."
No objection has been pointed out, and we can see none, to the summons or the service thereof in the former suit on the appellant Thomas Carrico. As against him, therefore, the record objected to was clearly competent evidence, and, as such, there was certainly no error in the admission of such record in evidence, over the joint objections of all the appellants, Thomas Carrico included. The appellants jointly objected to the admission of the record of the former suit in evidence, "because the affidavit for publication," as against the non-resident defendants therein, "was null and void." This is the objection to the admission of the record in evidence, which the appellants insist the trial court ought to have sustained. In overruling this objection, it is claimed that the court below erred, and it is for this error alone that the appellants ask for the reversal of the judgment below, in the pending suit.
Conceding without deciding, that the joint objection of the appellants and the ruling of the court thereon present the error, of which they complain, we will consider the sufficiency of the grounds whereon they ask for the reversal of...
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