86 Ind. 75 | Ind. | 1882
This action was brought by the appellant against the appellees, for the partition of a lot in the city of Terre Haute.
The complaint averred, in substance, that Thomas Cooper died seized of the lot, in May, 1881, leaving the appellant, his
Thomas and Chauncey were children by a former marriage, and they, by their guardian, filed an answer, alleging that, at the time the appellant was married to their father, she was the wife of another man, and by reason thereof they own the whole of said lot. Milly and George answered by guardian ad litem. The issues were tried by the court, and, over a motion for a new trial, judgment'was rendered for the appellees. The order of the court in overruling the motion for a new trial is assigned as error.
The appellees moved to dismiss the appeal because the certificate of the clerk to the transcript is insufficient, and because the appellant has not numbered the pages of the transcript, nor placed marginal notes upon them. This motion was made long after there was a joinder in error, and after the cause had been submitted by agreement. It comes too late. The joinder in error and the agreement to submit waive these objections. Field v. Burton, 71 Ind. 380; Ridenour v. Beekman, 68 Ind. 236. This motion is overruled.
The motion for a new trial was based upon the ground that the finding was contrary to the evidence and the law.
The following facts, the most of which were agreed upon, are undisputed, viz.: That the appellant was married to William Boswell in 1849, in Baltimore, Maryland; afterwards they removed to this State, and lived together until April, 1862, when he abandoned her; that, on the 5th day of November, 1866, without having procured a divorce from Boswell, she married Thomas Cooper, in Vigo county, in this State, and they lived together, in said county, as husband and wife, until his death in May, 1881; that during this marriage George and Milly Cooper, two of the appellees, were born to them, and that the other appellees are children of the decedent by a former marriage; that the property in dispute,
In the same work, at section 456, it is said, that if, when suit is brought, more than seven years have elapsed since the absent person was last heard of, he is presumed to be dead, and that it is not “ pressing the presumption of innocence very far to place the time of the death near that of the disap
In this case the trial occurred nearly twenty years after Boswell’s disappearance, and, on the assumption that he has not since been heard of, the law presumes that he is dead, and that his death occurred before the appellant’s marriage to Thomas Cooper. This being the presumption, it was incumbent on the appellees to remove it, and this they attempted to do by proving that Boswell returned in 1868 or 1869. For this purpose they called a Mrs. Purdy, who testified, substantially, that about the time named a stranger came to the house of Thomas Cooper, near where the witbess resided, had a personal altercation with him which resulted in blows, and within a day or two thereafter left town, and that she had never heard of him since; that the appellant, on the same day and several times thereafter, told her that this man Avas her first husband. The appellant was called as a witness, admitted the difficulty between this man and Thomas Coopei’, but denied that she had stated to Mrs. Purdy that this man was her first husband, and testified that he Avas not, but was a stranger to her. This Avas the only testimony upon the only disputed question of fact in the case, and the appellant insists that the finding AA^as Avrong.
The appellant’s marriage with Thomas Cooper was solemnized in this State, in accordance with our laws, and the parties lived as husband and wife, where they were married, until the death of Thomas Cooper.
This marriage was valid, unless Boswell was living at the time it was solemnized. No witness deposed to such fact. It was not necessary. It was enough to prove its illegality by an admission that he was living at a time subsequent to this marriage. If such admission was made, it was sufficient to establish such fact. The facts that the parties Avere married in this State, according to the formalities of our laAA; that they thereafter, during the lifetime of Thomas Cooper, lived here as husband and Avife; that they raised a family of children;
The act of March 11th, 1867, upon which the appellees relied in support of their objection, provides: “ That in all suits by or against heirs, founded on a contract with, or demand against, the ancestor, the object of which is to obtain title to, or possession of, land or other property of such ancestor, or to reach or affect the same in any way, neither party
This statute, if applicable, is broad enough to exclude the appellant; but this cause was tried after the statutes of 1881 went into force. Section 500 of R. S. 1881 provides, that “ If any witness shall, on behalf of * * * heirs, testify to any conversation or admission of a party to the suit, * * * as having been had or made in the absence of the deceased; then the party against whom such evidence is adduced, * * * * shall be competent to testify concerning the same matter.”
As it does not appear that the admissions of the appellant were made in the presence of the decedent, she was clearly competent to testify concerning them, and, being competent, it was the duty of the court to thus consider her testimony. "Whether it was considered we can not determine, but the announcement of the court when it was received, that if the cause was on trial before a jury the court would not permit her to testify, compels the conviction that the court regarded her as an incompetent witness, and, thus regarded, the court would not consider her testimony. It can not be that the courtwould consider and weigh testimony which, in its opinion, should not be submitted to a jury were the cause being tried by a jury, and since the opinion was entertained that the testimony was improper, it must be that the court reached its conclusion by disregarding it. We are somewhat strengthened in this conclusion by the fact that the appellees are at a loss to know whether the court, though the testimony was heard, excluded it or disbelieved it. They say that the court either disbelieved it or excluded it, and if it were excluded, the court did right, because the appellant was not a competent witness. This testimony, if believed, was abundantly sufficient to overthrow any case made by the appellees, and the court had no right to exclude her as a witness or to disregard her testimony if believed. Whether the court disregarded her testimony because incompetent, we can not say; but, however this may be, we are satisfied that this cause was tried upon the theory
Per Curiam. — It is therefore ordered, upon the foregoing opinion, that the judgment be and it is hereby in all things reversed, at the appellees Thomas and Chauncey Cooper’s costs, with instructions to grant a new trial.