Firestone v. Harshberger

• Decision Date: 27 November 1889
• Citation: 121 Ind. 201,22 N.E. 985
• Parties: Firestone v. Harshberger.
• Court: Indiana Supreme Court

121 Ind. 201

22 N.E. 985

Firestone

v.Harshberger.

Supreme Court of Indiana.

Nov. 27, 1889.

Appeal from circuit court, Madison county; D. Moss, Judge.Wm. S. Diven, for appellant. Pierse & Gerard, for appellee.

Elliott, J.

The appellant declared upon a promissory note negotiable under the law-merchant, executed by the appellee. The second paragraph of the answer is badly drawn, but we think it states facts constituting a prima facie defense to the action. The facts pleaded are very much the same as those contained in the answer discussed in the case of Palmer v. Poor, ante, 984, and upon the authorities there cited and for the reasons there given we hold the answer good. The appellant subscribed and swore to an affidavit asking a change of judge, and properly set forth therein one of the statutory causes authorizing such a change, but he did not come into court in person and make the application, nor in person file the application or affidavit. The application was made and the affidavit filed, as the record shows, by the attorneys of the appellant. It is contended by counsel that the decision in Stevens v. Burr, 61 Ind. 464, sustains the ruling of the trial court denying the application. We said in Palmer v. Poor, supra, that some of the expressions in Stevens v. Burr were too broad, and that they could not be regarded as authoritative. We now hold that the only point authoritatively decided in that case is that the party must himself make the affidavit, and that it cannot be made for him by another. There the affidavit was not made by the party, and our judgment is that the court was there simply speaking of the case actually before it, and that it did not mean to decide that an attorney might not present or file the affidavit made by his client. Taking all that was said by the court into consideration, it is evident that it had in mind the important fact that the affidavit was not made by the party, and it was that fact which influenced its decision. No one who has any knowledge of law, logic, or rhetoric will contend that an opinion or a discourse is to be judged by detached expressions or from fragmentary parts. It is elementary learning that all that is said or written upon one subject or point must be considered in determining what meaning a speaker or a writer intended to convey. This rule is applied in jurisprudence to statutes, pleadings, contracts, instructions, and judicial opinions, and in literature it is of universal...