26 Ind. 289 | Ind. | 1866
In this ease, the appellants, Isaac M. Coen and William S. Coen, at the September 'term, 1868, of the
The grounds stated for a review of the original judgment are, that Thomas Coen and Bufus Birch, the principals in the notes, had entered into two written contracts with Joseph Boole, the payee of the notes, for the delivery to him at Attica of a quantity of. corn, and upon which he had advanced to them certain sums of money; that said Coen and Birch had not delivered all the corn required by said contracts, and for their failure to do so, Boole claimed damages, and the notes upon which said judgment was rendered were given on a settlement of said corn contracts, and of the damages claimed thereon by said Poole; that at the time the notes were executed by the appellants, as sureties, Poole fraudulently represented to them that they were filled up with the true amounts due him from said Thomas Coen and Birch, when in truth the amounts were too large; that the value of the corn, at the dates of the breaches of the contracts, was estimated at 55 cents per bushel, when it should have been only 82 and 50 cents per bushel; and that interest was estimated on the amount from a date anterior to the breach of said contracts.
The complaint alleges that the issues formed in the original suit on the notes, and on the former complaint for a review, were in substance the same; that is, that the notes were fraudulently ante-dated, from June, 1858, to March 15th, 1857, and-drew interest from date; that the affirmance
The cause was removed by change of venue a second time to the Warren Court of Common Pleas, and thence to the Warren Circuit Court
The complaint is divided into three paragraphs by numbers. The part relating more particularly to the original judgment is called the first paragraph; while so much of it as states the causes for a review of the judgment rendered on the former complaint for a review, or for a new trial in that case, is called the second paragraph, and that part relating to the alleged payment of $200 by one of the appellants, under duress of execution, is numbered as the third paragraph.
Separate demurrers were filed to each of the paragraphs, as thus numbered, which the court sustained to the second, and overruled to the first and third. The cast of the complaint indicates that it was designed (as it is in fact) as a single paragraph. The whole relates to a single subject, the original judgment rendered on the notes, of which a re
Issues were formed on the first and third paragraphs, and on the trial a final judgment was rendered against the appellants.
The record not only presents a lamentable state of confusion, but is in many other respects a most extraordinary one. But a small portion of its space is given to the evidence in the case, yet it contains nearly four hundred pages of manuscript. After the first change of venue, the case in its frequent changes to and fro, from court to court and from county to county, seems to have become a wanderer, and at each change became involved in new intricacies, until it is claimed by the counsel for the appellee that it ceased to exist, though, phoenix like, a successor instantly sprang from its ashes, and yet of so recent date, that it too must yield to the iron rule of the statute of limitations. One fact however is patent in almost every page of the record: that the contest between counsel in the case, not only exhibited a proper zeal in the interest of their respective clients, but evolved unusual, if not new, points in professional skill.
■The appellants* counsel has presented us with a brief of one hundred and fourteen printed, pages, exhibiting patience, labor and research, in which a multiplicity of questions are discussed. But we find ourselves relieved from the necessity of entering upon so broad a field of labor, by the fact that we are met with a question at the very threshold which, in our opinion, must dispose of the case.
The judgment is affirmed, with costs.
Gregory, C. J., was absent.