State ex rel. Foster v. Swarts

• Decision Date: 04 June 1857
• Citation: 9 Ind. 210
• Parties: The State on the relation of Foster and Wife v. Swarts and Others
• Court: Indiana Supreme Court

9 Ind. 210

The State on the relation of Foster and Wife v. Swarts and Others

Supreme Court of Indiana

June 4, 1857

From the Warren Court of Common Pleas.

The judgment is affirmed with costs.

R. A Chandler, for the State.

Benjamin Gregory and Jesse Harper, for appellees.

OPINION

Stuart J.

Foster and wife are the relators. They sued Daniel Swarts and his sureties, as the executor of John Swarts, deceased, on his bond. The breach alleged is the failure to pay a legacy of 50 dollars, which the testator by his will left to his daughter Elizabeth Foster. It is further averred, that in settling with the Court, the executor retained this legacy in his hands; and that when afterwards demand was duly made, he refused to pay.

Answer that afterwards Foster and wife, by letter of attorney duly signed, constituted and appointed one John Regle their attorney in fact, for them and in their behalf to collect the said 50 dollars, the legacy mentioned; and that accordingly the executor paid the said attorney in fact, and took his receipt therefor. The power of attorney and receipt are exhibited--the one dated December 6, 1852, and the other May 5, 1855.

On the issue joined on this answer, and other issues--one of fraud in procuring the receipt from Regle by the executor--the cause was submitted to the Court. Finding and judgment for the defendants. Foster and wife appeal.

The question sought to be presented is one of great interest and importance. It appears that the executor did not pay the attorney in fact, Regle, any money. It was concerted between the executor, Regle, and Haynes & Co., that the latter should pay Regle and procure his receipt to the executor for the legacy. The executor was to give his note to Haynes & Co. for 50 dollars, and Regle was to settle that amount at Haynes & Co.'s store. This arrangement was carried out. Regle was paid by three dollars in money, and the balance credited as cash on his account with Haynes & Co. At the date of the suit, the note of the executor was yet unpaid. It is further shown that Haynes & Co. knew about the legacy and the relative position of the several parties. It may be very doubtful whether this was a payment of the legacy.

But the record does not present the question. The bill of exceptions runs thus: "Which was all the evidence given on the trial of the above entitled cause. Wherefore the Court found for the defendant, and rendered judgment accordingly. To which finding and rendition of judgment the plaintiff excepts, and prays that his several bills of exception may be signed," etc.

There are two fatal objections to the form of this record--

1. It does not appear that the plaintiff moved the Court for a new trial. This was essential to enable the Court to review its own action. Stump v. Fraley, 7 Ind. 679. It is due to the lower Court that its errors, if any, should be pointed out there, so that it may retrace its steps while the record is yet under its control. Without a motion for a new trial, the attention of that Court is not called to its own errors. It is not apprised of what they are. That motion was essential to bring any of the questions arising in the trial before ...