110 Ind. 579 | Ind. | 1887
This is the same case which was appealed to this court from the Marion Superior Court, and was finally decided here on the 24th day of May, 1886. The opinion and judgment of this court, on that appeal, are reported under the title of Board, etc., v. Center Township, 105 Ind. 422.
On that appeal the cause was presented, heard, considered and decided here upon the trial court’s special findings of the facts, and its conclusions of law thereon. The judgment of the Marion Superior Court was then reversed, and the cause was remanded, .with instructions to state its conclusions of law in accordance with the opinion of this court then pronounced, and to render judgment thereon in favor of the Indianapolis, Decatur and Springfield Railway Company, against the Board of Commissioners of Marion County, for $65,000, and interest thereon at sis per cent, per annum from the 18th day of March, 1881.
Thereupon Center township filed its verified motion to be relieved from such judgment then taken against it* in favor of the Indianapolis, Decatur and Springfield Railway Company, and the affidavits of Ernest Elitz and H. N. Spaan, Esq., in support of such motion ; and such railway company also filed the affidavits of J. V. McNeal and of Shepard, Elam and Martindale, in -opposition to such verified motion of Center township.
Thereupon the railway company aforesaid moved the court, upon affidavit filed, for a change of judge and a change of venue, which motion the court sustained, and the court then
Afterwards, on September 27th, 1886, in such Tippecanoe Circuit Court, the matters so pending herein as aforesaid having been fully heard and considered, the verified motion of Center township to be relieved from the judgment taken against it, in favor of the aforesaid railway company, was overruled by the court, and to this ruling the plaintiff, Center township, and the defendants, Wright and others as taxpayers, and the board of commissioners of Marion county, each separately and severally at the time excepted, and filed their bills of exceptions. Thereupon the court adjudged that such railway company recover of Wright and others, taxpayers, and of Center township, its costs taxed, etc., and from this judgment this appeal is now here prosecuted.
Errors are assigned here by appellant, Center township, which call in question the overruling (1) of its motion in arrest of judgment and for the correction of the trial court’s special findings of facts, and (2) of its motion to be relieved from the’judgment against it, in favor of the aforesaid railway company.
Cross errors have also been assigned by Wright and others, as taxpayers, who are named as appellees in this court. These cross errors do not differ from the errors assigned here by Center township, except in this, that a cross error is assigned ' which questions the jurisdiciion of the Tippecanoe Circuit Court to hear and determine the pending matters, which were transferred to that court, upon change of venue and of judge, from the Marion Superior Court. If this cross error be well
It can not be doubted, therefore, that either party to the record, upon an affidavit at the proper time and by the-proper person, showing one or more of the statutory causes, therefor, would.have been entitled to a change of venue or a change of judge, in the original cause. Whether .“ the matters pending herein,” which were transferred, upon the-change of venue and change of judge, to the circuit court of Tippecanoe county, and before Judge Vinton, judge of such court, were or were not motions in the original cause; it is certain, we think, that neither Center township, nor Wright and others, as taxpayers, are in a condition to claim that “ the matters pending herein,” so transferred as aforesaid, were not motions in and parts of such original cause..
It is claimed on behalf of Center township, and of the taxpayers of such township who have here assigned cross errors, that the Marion Superior Court erred in overruling appellant’s motion in arrest of the judgment, which that court was instructed to render by the judgment and mandate of this court, and for the correction of the special findings of facts, so as to show that the- aforesaid railway company had not in fact, as the trial court had found, located and built its principal machine shops within the limits of Center township, but that in truth and in fact, and contrary to what the court had found to be the fact, such railway company had located and built its principal machine shops outside of the limits of Center township, and within the limits of Wayne township, in Marion county. We are of opinion that no error was committed by the court in overruling such motion. In section 660, R. S. 1881, as applicable to the case in hand, it is provided as follows: “ When the judgment is reversed, in whole or in part, the Supreme Court shall remand the cause to the court below, * * * * if no new trial is required, with particular instructions relative to the judgment to be rendered and all modifications thereof.” When this cause was here before, Board, etc., v. Center Township, supra, in the opinion of the court it is sáid,.m limine : “ This case was disposed of below upon a special finding of facts and conclusions of law thereon. Whether or not the conclusions of law are correct, is the only question for discussion by this court.”
After an exhaustive examination and careful consideration of that question, this court concluded that the trial court had erred in its conclusions of law upon the facts specially
Appellant’s motion in arrest of judgment, and for the correction of the special findings of facts, we think, was correctly overruled for another reason. Substantially the same questions, which were presented by such motion, had been previously presented to and considered by this court, by the petition of Center township for a rehearing, in Board, etc., v. Center Township, supra. From the opinion of this court upon such petition, it will be seen that the principal
Of this last claim in such petition, in the opinion of the •court thereon, it is said: “ However this may have been, during the pendency of the cause in the court below, it is ■shown with reasonable certainty, as it seems to us, that the able attorney of Center township was fully informed of such mistake of fact in the special finding of facts, and that such •railway company had, in fact, located and built its principal machine shops within the limits of Wayne township, and not, as specially found by the trial court, in Center township, before the oral argument of the case in this court was fully heard, or the cause was finally submitted for our decision. We were not informed of any mistake of fact in the record, but we heard and decided the cause, with the belief and upon the supposition that the record before us, as it ought to have done, imported‘absolute verity.’ * * * We are now asked, on behalf of such township, to grant a
This petition was denied by this court, and this denial was, we think, under the law, the end of this case and of all. matters which were or might have been litigated therein.. This has always been the law in this State, since Fischli v. Fischli, 1 Blackf. 360.
The only other error complained of here is the overruling by the Tippecanoe Circuit Court of the motion of Center township to be relieved from the judgment of the Marion Superior Court, entered herein in compliance with the instructions of this court. This motion is based upon the same mistake of. fa5t, heretofore spoken of, in the special finding of facts, which mistake it was claimed had its origin in the mutual mistake of the counsel engaged in the cause, as to the actual and true location of the principal machine shops of the railway company. Indeed, in this motion, Center township based its claim to be relieved from the judgment taken against it, upon substantially the same facts which were presented to and considered by this court in its petition for a rehearing, and which were presented to, and ruled upon, by the Marion Superior Court, in its motion in arrest of judgment and for the correction of the mistake in the special findings of facts. Apparently, this motion was prepared with reference to the last clause or sentence of section 396, R. S. 1881, which provides that “The court * * * shall relieve a party from a judgment taken against him, through his mistake, inadvertence, surprise, or excusable neglect, * * * on complaint or motion filed within two years.” It is clear, however, that this statutory provision can have no application to the case in hand.
In Nelson v. Johnson, 18 Ind. 329, in speaking of section 99 of the civil code of 1852, which was substantially the same as section 396, supra, the court said : “ This section seems to have reference to cases in which the ground of relief is lim
Error of the court in its special findings of facts, no matter how that error may have occurred, is not the mistake of a party, within the meaning of section 396, supra, and for which relief may be had thereunder. Lawler v. Couch, 80 Ind. 369; Burton v. Harris, 76 Ind. 429.
In Sharp v. Moffitt, 94 Ind. 240, the court said : “ In general, no mistake, inadvertence, or neglect, attributable to the .attorney, can be successfully used as a ground for relief, unless it would have been excusable if attributable to the client.” Ereeinan Judg., section 112.
But it is claimed that the motion of Center township for relief from the judgment was an application to the equitable power of the court, and, therefore, ought to have been sustained. Equity will not, however, relieve a party from a judgment at law, where it appears that such party had a valid defence, which he negligently failed to interpose at the proper time. Thus, in Le Guen v. Gouverneur, 1 Johns. Cases, 436, on page 502, it was said by Kent, J.: “Every person is bound to take care of his own rights, and to vindicate them in due season, and in proper order. This is a sound and salutary principle of law. Accordingly, if a defendant having the means of defence in his power, neglects to use them, and suffers a recovery to be had against him by a competent tribunal, he is forever precluded.” Again, on page 505, the following language, which seems peculiarly applicable to the defence of Center township to the cross complaint of the railway company, was used by Judge Kent: “The attention of the respondents upon the trial at law, was, no doubt, occupied in defending themselves on another ground, and, probably, they concluded that the ground which they took was stable and competent. This, however, makes no difference in the case. The law imposes it on every man to know,
It is claimed, also, on behalf of Center township, in its. motion for relief from the judgment, that its counsel did not. know, at the time the special findings of facts were made and announced, that the principal machine shops of the railway company were not in-Center township, or were in Wayne township. It is not claimed, and, indeed, could not be, that the actual and true facts, as to the exact location of such shops could not have been .easily ascertained by slight examination or inquiry, and ordinary efforts. Nor is it claimed that the-railway company, or its counsel, knew at the time that its. principal machine shops were not located in Center township, of were located in fact in Wayne township, and concealed, or attempted to conceal, the actual facts from Center township or its counsel. On the contrary, one of the grounds specified in the motion for relief, which we are now considering, -was that the mistake of fact, as to the location of the principal machine shops of the railway company, had its origin in the mutual mistake of the counsel engaged in the cause. If it be true that the counsel were mutually mistaken as to the-fact in question, it can not be said that they could not, by the-exercise of ordinary and reasonable diligence, have obtained full and exact knowledge of such fact. In such case equity will afford no relief, “since that would be to encourage culpable negligence.” 1 Story Eq. Juris., section 146; Peyton v. Kruger, 77 Ind. 486; Johnson v. Herr, 88 Ind. 280.
For the reasons given, we are of opinion that no error was committed by the Tippecanoe Circuit Court in overruling the
The judgment is affirmed, with costs.
Elliott, C. J., took no part in the decision of this cause.