115 Ind. 539 | Ind. | 1888
A summary of the evidence is all that is necessary to present the controlling question in this case. On the 22d day of April, 1879, in an action in which appellee herein was plaintiff, and appellant William Carver and others were defendants, the Madison Circuit Court rendered a judgment and decree in her favor. So far as it is material here, that judgment was as follows:
“It is, therefore, considered that the plaintiff, Esther J.*540 Carver, is the owner of, and entitled to the possession of the undivided third part in value of the following lands and lots described in the complaiut, to wit: * * * It is further considered that the plaintiff recover of the defendant William Carver one hundred and twenty-five dollars, the damages assessed by the jury,” etc.
From that judgment the defendants appealed, and filed the record in this court on or before the 9th day of September, 1879. On that day, the Hon. J. L. Worden, then a judge of this court, upon application of the appellants in the case, made an order “ that execution and other proceedings on the judgment of the court be stayed as the law directs, whenever the appellants shall have given a bond according to law.” On the 15th day of the same month, the appeal bond in suit here was filed with and approved by the clerk of the Madison Circuit Court, and, on the 18th day of the same month, it was filed in the office of the clerk of this court. All proceedings upon the judgment were in fact stayed, and William Carver, the real appellant, remained in possession of all of the real estate in controversy, receiving the rents and profits until the judgment was affirmed, on the 16th day of October, 1884. Subsequent to such affirmation, and before this action was commenced upon the bond, the one hundred and twenty-five dollars for which judgment had been rendered, as above stated, together with interest and all costs, was paid.
The only remaining elements of damages upon which a claim for a recovery upon the bond is predicated,, are the mesne rents and profits of Mrs. Carver’s portion of or interest in the real estate held and occupied by William Carver, as above stated.
That a bond upon appeal to this court will cover mesne rents and profits in a proper case, is settled by the case of Opp v. TenEyck, 99 Ind. 345. In that case, nothing was in the way of the plaintiff enforcing his judgment and thereby recovering possession of the land, except the appeal bond
The only way by which she could have gotten possession of her interest in the real estate, without wrongfully disturbing William Carver in the rightful enjoyment of his interest, was by a partition and severance of their interests.
She might have prosecuted an action for partition notwithstanding the appeal by William Carver. Neither the appeal, the supersedeas nor the bond stood in the way of such an action, because such an action would not have been a proceeding upon the judgment appealed from. In such an ac
It was not possible.to institute any proceeding upon the judgment, aside from an execution, and, therefore, the supersedeas and bond did not stay any proceeding except an execution. Our conclusion here is fully sustained by the case of Randles v. Randles, 67 Ind. 434. See, also, Central U. Tel. Co. v. State, ex rel., 110 Ind. 203, and cases there cited.
That Mrs. Carver did nothing to assert her rights in the real estate under the judgment and decree, and allowed William Carver to remain in possession of it without partition, is of no consequence so far as the liability of the obligors upon the bond is concerned. Ham v. Greve, 41 Ind. 531 (537).
. Having reached the conclusion that the obligors are not liable upon the bond for mesne rents and profits, we need not consider the other questions discussed by counsel, except the point made by appellee that the long-hand manuscript of the evidence as made by the reporter is not properly in the record. That point, we think, is not well made.
The record shows that within the time given “the defendants, by their attorney, filed in the office of the clerk of said (Madison Circuit) Court their bill of exceptions, signed by the judge of said court, * * * which bill of exceptions is in these words, to wit.” Immediately following that.statement is the bill. On the first page is the title of the cause and an index of the witnesses. On the succeeding page is the following : “ Be it remembered, that, upon the trial of tbe above entitled cause, the plaintiff, to maintain the issues joined on her part, introduced to the court as follows, that is to say.” Following that is the evidence in behalf of the plaintiff. At the close of it is the statement: “ Plaintiff rests.” And following that is this: “ Whereupon the defendants, to maintain the issue joined on their part, introduced in evidence to the court as follows, that is to say,”
Without again referring to the cases cited and relied upon by appellee, it is sufficient to say that the late case of McCormick Harvesting Machine Co. v. Gray, 114 Ind. 340, fully meets every objection urged by her, and that, under the ruling in that case, the long-hand manuscript of the evidence is in the record, and the bill of exceptions sufficiently shows that it contains all of the evidence given in the cause. The agreements made during the trial were made and used as evidence, and hence are covered by the statement, “all the evidence given in the cause.”
The record affirmatively shows that the judgment of the court below is not sustained by sufficient evidence, and is contrary to law. Whatever right of action appellee may have against appellant William Carver for the rents and profits of the land, it is clear that she has no such right-of recovery upon the bond.
Judgment reversed, at appellee’s costs.