Howe v. Fleming

• Decision Date: 10 April 1890
• Citation: 24 N.E. 238,123 Ind. 262
• Parties: Howe et al. v. Fleming et al.
• Court: Indiana Supreme Court

123 Ind. 262

24 N.E. 238

Howe et al.

v.Fleming et al.

Supreme Court of Indiana.

April 10, 1890.

Appeal from circuit court, Monroe county; E. D. Pearson, Judge.

Louden & Rogers, for appellants. Eli K. Miller, R. A. Falk, John R. East, W. H. East, and S. E. Carmichael, for appellees.

Elliott, J.

This case has been in this court twice before. Fleming v. Hight, 95 Ind. 78, 101 Ind. 466. The questions there settled cannot be again considered. Under the long-established and familiar rule, the matters determined on the former appeals are res adjudicata. There is not simply a decision to be regarded as a precedent, but a judgment conclusive upon the questions throughout all subsequent stages of the case.

To entitle a party to give parol evidence of the contents of a paper alleged to be lost, it is incumbent upon him to show that a diligent and careful search was made at the proper places, and by the proper persons, and that it could not be found. It is not enough to give some evidence of its loss, but he must give such evidence as will satisfy the court that the proper foundation for the admission of secondary evidence has been laid. Where a paper which the law requires to be filed and kept by a public officer as part of the records or papers of his office is alleged to be lost, the court has a right to require, before receiving parol evidence of its contents, that careful and diligent search was made in the office, and by one so fully acquainted with the office, records, and papers as to make it probable that, if the paper was in the office, he would find it. We do not think the trial...