Forgerson v. Smith

CourtSupreme Court of Indiana
Citation104 Ind. 246,3 N.E. 866
PartiesForgerson and others v. Smith, Adm'r, etc.
Decision Date16 December 1885

104 Ind. 246
3 N.E. 866

Forgerson and others
Smith, Adm'r, etc.1

Supreme Court of Indiana.

Filed December 16, 1885.

Appeal from Tippecanoe circuit court.

[3 N.E. 867]

Coffroth & Stuart and B. W. Langdon, for appellants.

F. B. Everett and Wilson & Adams, for appellee.


This case is here for the second time. When it was here before, we held that the third paragraph of the answer of the present appellants was bad, and, in effect, that the present appellee, then the appellant, was entitled to a recovery upon the evidence. Smith v. Ferguson, 90 Ind. 229. The rule declared in that decision is the law of the case, and we are bound by it. Where there are incidental questions in a case which are not considered or decided, the court is not bound to consider the former decision as conclusively adjudicating upon them. Union School Tp. v. First Nat. Bank, 102 Ind. -; S. C. 2 N. E. Rep. 194; Davis v. Krug, 95 Ind. 1. But where the questions are necessarily involved, and where the conclusion declared could not have been reached without either expressly or impliedly deciding such questions, the judgment on appeal rules the case throughout all its subsequent stages. The decision is an adjudication concluding the courts and the parties. It is not, of course, conclusive as to other cases; but it is conclusive as to the questions in judgment in which it was rendered, upon the parties and those in privity with them. Dodge v. Gaylord, 53 Ind. 365;Richmond St. R. Co. v. Reed, 83 Ind. 9;McClaren v. Indianapolis, etc., Co., 83 Ind. 324;Braden v. Graves, 85 Ind. 96;Board, etc., v. Jameson, 86 Ind. 154;Gerber v. Friday, 87 Ind. 366;Anderson v. Kramer, 93 Ind. 170;Jones v. Castor, 96 Ind. 307. The questions affecting the merits of the case were considered and decided in the former appeal, and we cannot depart from the rule there declared.

The fact that a new party defendant came into the case, over the objection of the appellee, does not change the rule. The court, in Bitting v. Ten Eyck, 85 Ind. 357, in speaking of parties who came into the case in the same manner in which Mrs. Forgerson came into the present case, said: “They came in of their own choice, against the protest of the plaintiff, and must be considered to have elected to abide the result of the case, as if they had been in from the beginning.” There may possibly be cases where a new party would bring new elements into the case, so changing its character as to prevent the operation of the rule of which we have spoken; but, however this may be, the entrance of Mrs. Forgerson produced no such result in this instance. She claims in the same right,

[3 N.E. 868]

and no other, as that asserted by her co-defendant, and that claim was adjudicated upon the former appeal.

We regard the former decision as adjudicating all of the controlling questions in the case, for it was not possible to reach the conclusion there announced without deciding that the property in the promissory notes in controversy was in the administrator of the estate of Mahala Shaw, deceased. This was the ruling principle of the case; all other things were merely incidental and subsidiary. The question for judgment was, to whom did the notes belong? And upon this question there was an adjudication. It cannot be successfully asserted that this point was not decided; and if it was, then, no matter what form the question assumed, the decision supplies a rule governing the case until the litigation is at an end. Accepting, as we must, the rule declared on the former appeal, and applying it to the answer and the evidence, we can do no otherwise than sustain the rulings of the court below upon the answer and upon the facts established by the evidence.

There are some questions arising on the rulings on the admission and exclusion of evidence not covered by the former decision, and we now proceed to consider and decide those questions.

The court refused to permit the appellants to testify as to matters which occurred prior to the death of Mahala Shaw. We understand counsel for the appellants to assert that, in excluding this evidence, there was an abuse of the discretion vested by the statute in the court. They refer to sections 498-501 of the Revised Statutes of 1881, and the amendatory act of March 5, 1883, and say:

“What is an abuse of the court's discretion under this statute has not been considered in this court so far as we know. It is a highly important matter in the daily administration of justice. The exercise of the discretion in this respect in the different trial courts is as variant as the extent of learning or bent of mind of those who, from time to time, preside over them. So a litigant may be able to recover in one county in this state in an action which would be defeated if brought in another county. This is not law. Prior to 1881, the exercise of this discretion was not reviewable, but in that year the legislature amended the statute so that abuses in this regard could be overhauled. The viciousness of a system of laws whose operation rests in the undefined and uncontrolled fiat of one man should be reduced to a minimum by courts as well as legislatures. That is the purpose of the act of 1881. It does recognize the evils, and leaves it to the learning and sound discretion of this court to see that they are abated when properly brought up. Of course, no formal definition of what will constitute an abuse can be laid down for all cases, and whether there has been an abuse in any case must largely depend upon its peculiar circumstances. The policy of the statute is plainly to thwart or prevent the advantages which may arise where one person may speak to a fact, and the other cannot be heard. That is a good general rule; but whenever it appears that the advantages are being turned the other way, the reason of the rule ceases, and should not stand in the way. It would seem that where the dangers of perjury are removed; where the character of the party appears of record to be worthy of credence, and to be trusted by the court; and where it appears that the living litigant has, by creditable witnesses, made such a claim or defense as to make it appear that injustice and wrong will have the upper hand, and that the estate is obtaining a forced advantage unless the party be permitted to speak,-the rule should become the exception, as the statute intended.”


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