79 Ind. 485 | Ind. | 1881
— This case has been in this court before, in a little different form, and the decision of it is reported in 52 Ind. 513 (Wilson et al. v. Dawson et al). The original action was brought by Wilson and others to reform and foreclose a mortgage. The appellant herein, Charles J. Dawson, and Zimri Atkinson, Joseph Atkinson, Eobert M. Atkinson, Cephas Atkinson and Wesley Wagner were, among other persons, made defendants. The only supposed errors complained of by the appellant are shown by the following bills of exception:
1. “Be it remembered, that heretofore, to wit, at the present term of this court, the defendants, Zimri Atkinson, Joseph Atkinson, Cephas Atkinson, Eobert M. Atkinson and Wesley Wagner, by their attorneys, Joseph M. Eabb , and James Mc-Cabe, moved the court to strike the names of said defendants from the record. And that after argument the coui’t, on the 18th day of June, 1877, sustained said motion and struck the names of said defendants from the cause, and to the ruling of the court in sustaining said motion the defendant Charles J. Dawson then and there excepted, and time was given to file exceptions,” etc.
2. “Be it remembered, that on the seventh juridical day of the June term of said court for 1877, the defendants Zimri Atkinson, Joseph Atkinson, Cephas Atkinson, Eobert M. Atkinson and Wesley Wagner moved the court to strike from the files of this cause the cross complaint of the defendant Charles J. Dawson filed herein on the 3d day of April, 1877, which reads in the words and figures following, to wit” (here the cross complaint is set out), “ and which said motion reads as follows, to wit (not on file with the papers in the cause), and, after argument of said motion, the court then and there sustained the same, and struck from the files .of'said cause said cross complaint, and to the sustaining of said motion the defendant Charles J. Dawson then and there excepted, and time was given to file his bill of exceptions,” etc.
The first bill of exceptions does not show the ground on which the names of Zimri Atkinson and the other persons
This is the view of counsel for the appellant, for in their ’¡brief they say: “ The question presented by this record arises •on the allegations contained in the cross complaint of Charles -J. Dawson against the appellees, set out in the assignment of •error.”
We conclude, therefore, that no error was committed against the appellant in striking out the names of the persons mentioned as parties to the action.
The next question is, did the court err in striking out the ¡appellant’s cross complaint? We can by no means say that there was any error in this ruling. The second bill of ex•ceptions does not show the ground upon which the motion to .strike out was made or sustained. There may have been good ¡ground for sustaining the motion, and we must presume that ■such ground existed, in the absence of any showing of the ¡ground upon which the oourt acted.
Thus, in the case ¡of Ross v. Misner, 3 Blackf. 362, a cause ihad been dismissed in the circuit court, on motion, no reason appearing for or against the dismissal, and it was held that the ■dismissal must be presumed to have been correct.
Again, in the case of The Inhabitants of Congressional Township, etc., v. Clark, 1 Ind. 139, a cause was dismissed on motion of the defendant, the bill of exceptions not showing the ground of the motion. Held that the presumption was that the cause was dismissed on sufficient ground. In Conoway v. Weaver, 1 Ind. 263, the same thing was held, and in
The judgment below is affirmed, with costs.
