Sec. Co. v. Arbuckle

• Court: Indiana Supreme Court
• Writing for the Court: Berkshire
• Citation: Sec. Co. v. Arbuckle , 123 Ind. 518, 24 N.E. 329 (Ind. 1890)
• Decision Date: 03 May 1890
• Parties: Security Co. v. Arbuckle et al.

123 Ind. 518

24 N.E. 329

Security Co.

v.Arbuckle et al.

Supreme Court of Indiana.

May 3, 1890.

Appeal from circuit court, Hamilton county; D. Moss, Judge.

Kane & Davis, for appellant. Stafford & Boyd, for appellees.

Berkshire, J.

The appellees filed their complaint to obtain a nunc pro tunc entry in an action that had been tried and finally determined between the same parties, and in which an appeal to this court was being prosecuted by the appellant herein. After filing their complaint the appellees gave notice to the appellant by publication. The appellant entered a special appearance, and moved to set aside the notice. This motion the court overruled, and the appellant reserved the proper exception, and the court ruled the appellant to answer. The appellant then filed a demurrer to the complaint, which was overruled; and it reserved an exception, and filed an answer in general denial. The cause, being at issue, was submitted to the court, and a finding made for the appellees. The appellant filed a motion for a new trial. This motion the court overruled, and the appellant reserved an exception. Thereupon, by order of the court, the nunc pro tunc entry asked for was made, and judgment rendered against the appellant for costs. The questions presented by the errors assigned are: (1) Did the court err in overruling the motion to set aside the notice? (2) did the court err in overruling the demurrer to the complaint? and (3) did the court err in overruling the motion for a new trial?

The only objection made to the notice is that four weekly publications in the newspaper in which publication was had were not made. The argument is that the statute requires three weeks' notice by publication, and that this can only be given by publication of the notice in four successive issues of the newspaper. The statute is plain, and its construction ought not to be doubtful, in the light of former decisions of this court placing a construction upon it. See section 318, Rev. St. 1881, as amended by the act of 1885, (Elliott, Supp. § 1.) The material part of the section to the question under consideration is as follows: “The clerk, by order of the court if in session, or in vacation without such order, shall cause a notice of the pendency of any action, and the term at which the same will stand for trial, to be published for three weeks successively.” Section 516, Rev. St. 1881, as amended by the legislature at its session of 1883, (Elliott, Supp. § 16,) so far as we need to quote from it, is as follows: “Provided, however, that when the complaint is filed, whether before or during any term of court, the plaintiff may fix the day during such term by indorsement thereof upon the complaint at the time of filing the same, on which the defendant shall appear; which day, when so fixed, shall be stated in the summons when issued, and the action shall be docketed in its order; and, if summons shall be personally served ten days before such day, or publication shall be made three weeks, thirty days before such day, such action shall thereupon stand for issue and trial at such term, and the court shall have jurisdiction to hear and determine such action as if summons had been served or publication made before the first day of the term, as herein provided; * * * and, if summons shall be personally served ten days before such day, or publication made three weeks, successively, thirty days before such day, such case shall stand for issue and trial at such term.” We think that the legislature intended by these statutory provisions, in cases of notice by publication,...