White v. Gregory

• Decision Date: 31 October 1890
• Docket Number: 14,500
• Citation: White v. Gregory, 126 Ind. 95, 25 N.E. 806 (Ind. 1890)
• Parties: White v. Gregory, by Next Friend
• Court: Indiana Supreme Court

25 N.E. 806

126 Ind. 95

White v. Gregory, by Next Friend

No. 14,500

Supreme Court of Indiana

October 31, 1890

From the Martin Circuit Court.

The judgment is affirmed, with costs.

J. W Burton, J. C. Billheimer and J. Downey, for appellant.

A. J Padgett and A. M. Hardy, for appellee.

OPINION

Mitchell, J.

This is an appeal from a judgment rendered in favor of Nancy A Gregory against George W. White, in an action by the plaintiff to recover damages for her own seduction. It is insisted that the evidence does not sustain the verdict. We are met, however, with the proposition that the evidence is not in the record, and this proposition can not be disregarded without ignoring the statute and numerous decisions in which its provisions in relation to the authentication of bills of exceptions have been expounded. In order to have made the bill of exceptions containing the evidence a part of the record, it was essential that it should have been tendered or presented to the court on or before the 16th day of May, 1888, which was the date on which the time limited for the presentation of the bill expired. The formal conclusion of the bill is as follows: "And the defendant now here tenders his bill of exceptions, and prays that the same may be signed, sealed, and made a part of the record, which is done this 1st day of June, 1888." Then follows the signature of the presiding judge. Following this is a memorandum, which is also signed by the judge, to this effect: "Presented to me, this 10th day of May 1888."

It will be observed that the statement contained in the bill of exceptions is, in effect, that it was tendered on the 1st day of June, 1888. The statute, section 629, R. S. 1881, provides in express terms that the date of the presentation shall be stated in the bill of exceptions, and it has been ruled over and over again that a memorandum on or following the bill, as signed by the presiding judge, is not a compliance with the statute. Buchart v. Burger, 115 Ind. 123, 17 N.E. 125; Orton v. Tilden, 110 Ind. 131, 10 N.E. 936; Rigler v. Rigler, 120 Ind. 431, 22 N.E. 776; McCoy v. State, ex rel., 121 Ind. 160, 22 N.E. 986; McCormick, etc., Co. v. Maas, 121 Ind. 132, 22 N.E. 983; City of Plymouth v. Fields, 125 Ind. 323, 25 N.E. 346.

If it were allowable to state the time of presentation in a memorandum endorsed upon the bill, the time stated in the bill would control, and as it appears by the controlling statement contained in the bill that it was not tendered to the judge until after the time had expired, it necessarily follows that it did not become a part of the record. Notwithstanding the evidence is not properly in the record we have carefully examined the testimony, and while it is in some respects of a most remarkable character, the most that can be said of it is the jury accepted the evidence of the plaintiff notwithstanding the contradictions that appear.

Evidence of the pecuniary condition of the appellant was admitted, and this is complained of. The authorities are not uniform upon the subject of the admissibility of such evidence, but the rule as settled in this State allows of its reception. The ground upon which such evidence is received is, that actions for seduction are given not only as a means of compensating the injured party but for the punishment of the seducer as well, and that what might be an adequate punishment to one person might be no punishment to another of great wealth. Besides, the pecuniary circumstances and station of the seducer may have contributed largely with other artifices persuasions, promises and professions employed, to accomplish the ruin of his victim. Where, therefore, the offence is committed by a married man or other person under such circumstances as do not render the offender amenable to the criminal law, exemplary damages are allowable in the discretion of the jury, and evidence of the pecuniary condition of the defendant is properly received. Shewalter v. Bergman, 123 Ind. 155, 23 N.E. 686; Wilson v. Shepler, 86 Ind. 275; Lavery v. Crooke, 52 Wis. 612 (...