Nitche v. Earle

• Citation: 19 N.E. 749,117 Ind. 270
• Parties: Nitche et al. v. Earle.
• Decision Date: 29 January 1889
• Court: Supreme Court of Indiana

117 Ind. 270

19 N.E. 749

Nitche et al.

v.Earle.

Supreme Court of Indiana.

January 29, 1889.

Appeal from circuit court, Lake county; E. C. Field, Judge.

Action by John G. Earle against J. A. Nitche and others. Nitche appeals. Const. Ind. art. 4, § 19, requires that “every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title. * * *” By Rev. St. Ind. 1881, § 1065, which is included in the article entitled “Ejectment,” and the section preceding which provides for a new trial of right, “if the application for a new trial is made after the close of the term at which the judgment is rendered, the party obtaining a new trial shall give the opposite party 10 days' notice thereof before the term next succeeding the granting of the application.”

J. Kopelke, for appellant. C. F. Griffin, for appellee.

Olds, J.

This action was commenced by appellee against appellant on the 2d day of March, 1881, in the Lake circuit court, to recover the possession of, and quiet title to, a tract of land in Lake county, Ind. Issues were formed, and the cause tried by the court at the November term, 1881, and judgment rendered for appellee upon a special finding of facts. From that judgment appellant Nitche appealed to this court, and the cause was reversed. Nitche v. Earle, 88 Ind. 375. Under the direction of this court, the court below, at the September term, 1883, entered judgment for appellant upon the special finding of facts. At the February term, 1884, the plaintiff obtained a new trial as of right. At the April term, 1884, appellant appeared to the action, and moved the court to vacate the order granting the new trial for the insufficiency of the bond, which motion was overruled; and at the September term, 1884, appellant moved to vacate the order granting a new trial for failure of the plaintiff below, the appellee, to give notice thereof, which motion was overruled, to which ruling appellant excepts. Another trial was had at the February term, 1886, and judgment rendered in favor of appellee. Motion was made by appellant and his co-defendants for new trial, and the motion overruled, and excepted to by appellant. The errors assigned are that the court erred in overruling the motion of appellant to vacate the order granting the appellee a new trial, for the reason that no notice was given thereof, and the overruling of the motion for new trial.

There was no error in overruling appellant's motion to vacate the order granting a new trial. In the case of Stanley v. Holliday, 113 Ind. 525, 16 N. E. Rep. 513, this court has placed a construction on section 1065, Rev. St. 1881, and the court in that case says: “The intention of the legislature in requiring that ‘the party obtaining a new trial shall give the opposite party ten days' notice thereof before the term next succeeding the granting of the application,’ as we construe such requirement in connection with the other provisions of the statute relating to new trials as of right, was to prevent either party from forcing the opposite party into trial at or during the term at which the new trial was granted, or before the term next succeeding. This provision of section 1065 was rendered necessary, we suppose, to prevent the plaintiff in such a case from forcing defendants into trial during the term at which the new trial was granted, under the provisions of section 516, Rev. St. 1881.” Under this authority the action of the court was right in granting the new trial, and overruling appellant's motion to vacate for failure of notice.

Several questions are presented upon the overruling of the motion for new trial. The first is admission by the court in evidence, over objection of appellant, of a certified copy of the record of a patent by the state of Indiana to George Earle for the real estate described in the complaint, which record of patent was certified to by James H. Rice, auditor of state. It is urged that it is shown on the face of the record not to be the copy of any record; that for all it shows on the face of it it may be the original patent; that it has the signatures of the governor and secretary of state, and nowhere has a certificate of the secretary of state that he recorded it; and counsel insist that, unless the instrument shows, by official entries or certificates by officers who made it, that it is a record, it is no record; that a volunteer statement by the present keeper, giving his opinion about it, will not make it a record; that by the original law these records were to be kept in the office of the secretary of state; that the certificate of the auditor of state should show how he came by the book.

The instrument offered and admitted in evidence was a certified copy of letters patent to George Earle for the land in question in this case, the auditor of state certifying the same to be “a full, true, and complete copy of the record of letters patent executed and issued on the 12th day of January, 1857, by the state of Indiana to George Earle, for the lands therein described, as the same appears on page 379 of the Record of Swamp Lands, Vol. 33, range west, now on file in my office, and of which record I am the legal custodian,” properly signed by the auditor of state, and seal attached. By section 5628, Rev. St. 1881, all records pertaining to swamp lands were transferred from the office of the secretary of state to the office of the auditor of state. Section 462 prescribes the manner in which all copies of records in public offices shall be certified, and makes them admissible in evidence. The statute makes the auditor of state the proper custodian of the record of letters patent which were formerly recorded by the secretary of state, and kept in his office, and this copy of the record was properly authenticated. Section 4, Gavin & H. St. 607, made it the duty of the secretary of state to record these letters patent in books to be kept in his office. Thus it was first provided by statute and made the duty of...