Merrill v. Shirk
| Decision Date | 18 June 1891 |
| Docket Number | 15,068 |
| Citation | 28 N.E. 95,128 Ind. 503 |
| Parties | Merrill v. Shirk et al |
| Court | Indiana Supreme Court |
From the Marshall Circuit Court.
Judgment for costs is reversed, and the court is directed to sustain the motion.
C Kellison, for appellant.
J. D McLaren and E. C. Martindale, for appellees.
This was a suit by the appellant against the appellees to recover the undivided one-third of certain land in Marshall county, to quiet her title thereto, and for partition. There was a trial by jury, resulting in a verdict in appellant's favor, and a judgment quieting her title and awarding her partition as prayed.
The only question presented to us in this appeal is on the action of the trial court in refusing to modify the judgment rendered for costs, and this question, the appellee contends, is not properly in the record, and can not be considered by us. In this appellee is mistaken. The cause was commenced March 3d, 1888, and was tried and the verdict returned at the May term, 1888, of the Marshall Circuit Court. Appellees moved for a new trial, and on the 29th day of October, 1888, their motion was overruled and judgment was rendered on the verdict. Commissioners appointed by the court to make partition, made their report December 18th, 1888, the second day of the December term, 1888. Their report was approved and confirmed, and the court made an order taxing the costs in the case, one-third to the appellant and two-thirds to the appellees. The record does not show that any objection was made, or exception taken at the time to this order, but does show that on a later day of the same term appellant filed his motion to modify the judgment and retax the costs. The record further shows that this motion was not ruled upon by the court until the next term, when it was overruled, and that appellant at the time excepted. It is further shown that afterwards, and during the same term, an appeal was prayed to this court, which was granted, and sixty days' time given within which to file a bill of exceptions. This order was made April 19th, 1889, and the bill of exceptions was filed May 22d, 1889. The motion to modify the judgment and retax the costs, made any time during the term when the judgment was rendered, was in time, as during that entire term the proceedings were in fieri.
All of the foregoing facts are shown by order-book entries. The motion to modify the judgment and to retax the costs is not extended on the order-book, but is brought into the record by the bill of exceptions. This is sufficient.
It is also insisted by the appellee that the question is not properly before us, because the bill of exceptions does not purport to contain all the evidence upon which the court acted in ruling upon the motion, and does not contain the technical averment that this was all the evidence given in the cause. This was not necessary. The law does not necessarily contemplate a trial and the introduction of evidence on the hearing of a motion of this character. As above stated, the bill of exceptions contains the motion to modify the judgment and retax the costs. It is verified, and shows that the total costs accrued in the case were $ 162.60 and that of this sum $ 120.20 was made on the trial of the issue of title, and the balance only was made in the partition proceeding proper. It is based upon and accompanied by an...
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