Terrell v. Butterfield

• Decision Date: 27 November 1883
• Docket Number: 8706
• Citation: 92 Ind. 1
• Parties: Terrell et al. v. Butterfield, Executor
• Court: Indiana Supreme Court

92 Ind. 1

Terrell et al. v. Butterfield, Executor

No. 8706

Supreme Court of Indiana

November 27, 1883

From the Superior Court of Marion county.

The judgment is affirmed, with costs.

W Morrow, R. Hill and W. H. Martz, for appellants.

S Claypool and W. A. Ketcham, for appellee.

Howk C. J. Elliott, J., took no part in the consideration or decision of this cause.

OPINION

Howk, C. J.

On the 24th of October, 1873, this suit was commenced by the appellee, John W. Butterfield, executor of the last will of John A. Coburn, deceased, as plaintiff, against Thomas B. McCarty and the appellant William H. H. Terrell, as defendants. The object of the suit was to recover from the defendants the sum of $ 10,000, with interest thereon since the 1st day of March, 1870, as so much money had and received by them, as the appellee averred, from Nathan Kimball, treasurer of State, for the State of Indiana, for the use of John A. Coburn, appellee's testator, in accordance with and by virtue of the specific appropriation act, for the year 1869. Afterwards, on the 13th day of October, 1875, the death of the defendant Thomas B. McCarty was suggested to the court, and the appellant Lavina C. McCarty, executrix of the last will of such decedent, was made a party defendant in his stead.

The cause was put at issue and tried by a jury, and a general verdict was returned for the appellee, in the sum of $ 4,439.75, for which sum judgment was rendered at special term, in the ordinary form, in appellee's favor and against the appellant Terrell, and the same sum was allowed in favor of the appellee and against the estate of Thomas B. McCarty, deceased, in the hands of his executrix, Lavina C. McCarty, to be administered. On appeal, the judgment and allowance were each affirmed by the court in general term. From the general term, Terrell and Mrs. McCarty have appealed to this court, and, by proper assignments of error here, each of them has brought before this court the errors assigned by him or her respectively, in the general term.

In their brief of this cause, the appellants' counsel say: "The first question, we desire to present, is the irregularity of the action of the general term in annulling its judgment, reversing the judgment of the special term." We are met in limine, therefore, with the following question: What does the record of this cause properly show in relation to "the irregularity of the action of the general term," of which the appellants' counsel complain?

During all the time this cause was pending in the Marion Superior Court, both at the special term and in general term, and until this appeal from the judgment of the general term was fully perfected, the law governing its jurisdiction, original and appellate, was the act of February 15th, 1871, "to establish superior courts, defining their jurisdiction, and providing for the election and compensation of the judges thereof." Acts 1871, p. 48; 2 R. S. 1876, p. 23. In section 25 of this act (section 1360, R. S. 1881), it was provided as follows:

"In all cases where, under existing or future laws of this State, a person has the right of appeal from the circuit court to the Supreme Court, an appeal may be had from a special term to the general term of said superior court. The appeal shall be heard and considered in the general term upon the original papers and records filed, and made in the cause at special term, and such matters as are properly made part thereof by bills of exceptions; it may affirm or reverse the judgment of the special term, or modify it, or render such judgment as may be deemed proper. It shall, if the judgment of the special term is not affirmed, enter of record the error or errors found therein, and remand said cause to the special term with instructions as to said error or errors, and the special term shall carry into effect the instructions of the general term." 2 R. S. 1876, p. 27.

There was nothing in the act of February 15th, 1871, under which the Marion Superior Court was established, nor is there anything in the law under which such court is now organized, which requires the court in general term, either in affirming or reversing the judgment of the special term, or in modifying such judgment, to file a written opinion in the cause, setting forth therein the reasons for its decision. Nor did nor does the statute regulating the proceedings in such court, expressly or by implication, make or constitute any such written opinion of the general term a part of the record of the cause, on an appeal from the judgment of the general term to this court. In the section of the statute quoted, it was provided (and the same provision, in the same words, is found in section 1360, R. S. 1881), that the general term "shall, if the judgment of the special term is not affirmed, enter of record the error or errors found therein, and remand said cause to the special term with instructions as to said error or errors."

The record of this cause, under the date of February 3d, 1879, "being the first judicial day of the February term, 1879," of the court below, contains a transcript of the order-book entry of the action of the general term herein, as follows: "Come the parties, and the court, being fully advised, affirmed the judgment. Opinion by Burns, J." It is manifest, from the subsequent portion of the record, that there is a clerical error in this entry, either in the original or in the transcript thereof; for the judgment at special term was not affirmed, but reversed, by the general term, in the opinion pronounced by Judge Burns. Immediately following the order-book entry, above quoted, there appears in the transcript before us what purports to be, and probably is, a copy of Judge Burns' opinion filed in this case, as it may be supposed, in the general term. There is no order of the court, and no recital or file-mark of the clerk, appearing in the transcript, which indicates that this opinion was ever filed or entered of record in the general term. Indeed, it is not shown, in any manner, that the opinion of Judge Burns is a proper part of the record of this cause; and this fact, if it be the fact, can only be inferred from its juxtaposition and connection with other matters, precedent and subsequent, which are proper parts of the record. It may well be doubted, whether, in any case, the written opinion of the general term will constitute a proper part of the record, on an appeal to this court, unless it is made such either by an order of the general term or by a bill of exceptions. Gutperle v. Koehler, 84 Ind. 237; Hanna v. Aebker, 84 Ind. 411; McWhinney v. Briggs, 85 Ind. 535.

Waiving this objection, however, and conceding, without deciding, that the opinion of Judge Burns is properly in the record, it is shown, by the transcript before us, that on February 28th, 1879, during the same term of the court wherein such opinion was filed, the appellee Butterfield appeared and filed his petition for a rehearing of this cause by the court in general term. Thereafter, on September 1st, 1879, being the first judicial day of the September term, 1879, of the court below, the prayer of the petition for a rehearing was granted by the general term. Afterwards, on November 3d, 1879, being the first judicial day of the November term, 1879, of the court, the judgment at special term was affirmed by the general term, Holman, J., pronouncing the opinion.

Appellants' counsel insist that the action of the general term of the court, at its November term, 1879, in reversing its own judgment rendered at its preceding February term, was erroneous, and that its judgment should be reversed back to its first judgment. In argument counsel say: "Petitions for rehearings in cases on appeal are unknown at the common law. They are regulated solely by statute. The act under and by virtue of which the court below was organized provides for appeals from a special to the general term, and from thence to the Supreme Court, but makes no provision for a rehearing in the general term after it has once decided a case." This argument, if we understand it, amounts to this: The statute under which the Marion Superior Court is organized, and which gives the general term certain appellate jurisdiction, makes no provision for the modes of procedure in general term, and, especially, for petitions for rehearings. In the absence of such statutory provision, we are remitted to the common law; and, inasmuch as petitions for rehearings were unknown at the common law, therefore there can be no petitions for rehearings, it is claimed, in the court below in general term. The argument is unsound, and, besides, it proves too much. The statute providing for the establishment of the court was a mere skeleton in so far as the rules of procedure therein were concerned; but it could hardly be claimed, for that reason, that nothing could be done therein at special term or in general term, whereof it might be said, in the language of counsel, that it was "unknown at the common law." We are of opinion that, in providing for the organization of such a court, it was the intention of the General Assembly that its modes of procedure, in all suits or proceedings, original or appellate, there pending, should be governed by, and conform to, the provisions of the civil code, applicable in like cases in the other courts of the State of original or appellate jurisdiction. In this view of the question under consideration, we are fully sustained, as it seems to us, by the decisions of this court. Thus, although the statute creating the court does not require any assignment of errors, or other pleading, in the general term, yet it has been held, and correctly so in our opinion, that "An appeal from a special to the general...