Hendry v. Crandall

• Decision Date: 29 March 1892
• Docket Number: 15,519
• Citation: 30 N.E. 789,131 Ind. 42
• Parties: Hendry et al. v. Crandall
• Court: Indiana Supreme Court

30 N.E. 789

131 Ind. 42

Hendry et al. v. Crandall

No. 15,519

Supreme Court of Indiana

March 29, 1892

From the Whitley Circuit Court.

Judgment reversed.

J. A Woodhull, W. M. Brown, D. R. Best, E. A. Bratton and E Davis, for appellants.

T. R Marshall and W. F. McNagney, for appellee.

OPINION

Miller, J.

We are asked to dismiss this appeal because the names of two persons appear among the appellants who, it is said, were not parties to the judgment.

The persons referred to were parties to the action, and the judgment for costs was rendered against the defendants generally, without setting out their names. The clerk, in giving the title of the cause in the docket entry preceding the trial, seems to have omitted these names, but this was a mere clerical misprision which could not work a discontinuance of the cause as to them, or shield them from the judgment, which appears from the whole record to have been rendered against them and the other defendants.

The motion to dismiss is overruled.

This was a proceeding instituted by the appellee to obtain a license to sell intoxicating liquors. The appellants were remonstrants.

The cause was appealed to the circuit court, in which court the appellants asked that the cause be tried by the court without the intervention of a jury. This motion was overruled and the cause submitted to a jury for trial.

After the case had been fully tried and submitted to the jury for determination, and they had failed to agree, the court, of its own motion, withdrew the cause from their further consideration, discharged the jury, and found for the appellee upon the evidence that had been given to the jury upon the trial.

The appellants excepted to this action and ruling of the court, and have assigned it as error here.

We are of the opinion that after the cause had been submitted to the jury for trial, the evidence introduced, argument had, and the jury had retired for consideration, it was too late for the court to reconsider its ruling, and, without the consent of both parties, withdraw the cause from the jury and decide it on the evidence that had gone to the jury.

We must presume that the court gave the same attention to the evidence as it was introduced, and scrutinized the manner and conduct of the witnesses, just as he would have done if the trial had taken place without the empaneling of a jury; but we can not presume that the appellants were not ...