Foote v. Lefavour

6 Ind. 473 | Ind. | 1855

Perkins, J.

Bill of review for errors of law appearing upon the face of the original decree. Demurrers sustained to the bill and the bill dismissed.

The decision must be affirmed. We have been able to discover no error, at least of more than mere form, in the original decree; but, says Story, in his Equity Pleading, p. 456, s. 411, “ error in matter of form only, although apparent on the face of a decree, seems not to have been considered a sufficient ground for reversing the decree.” .

In this case, the original bill was filed against infant heirs, &c., for the redemption of property. The writing under seal on which the bill was founded was set forth in full and made an exhibit. The heirs were duly served with process, and a guardian, ad litem appointed, who answered for them. The case was plainly proved; and the record presents a more than ordinary degree of accuracy of proceeding.

It is objected that the exhibit mentioned above was not proved. The answer is, that it might have been proved by parol at the hearing, and, hence, the evidence not made a part of the record; and, further, that, in point of fact, the record does show it was proved. It is clearly shown by the testimony of Harrison, Phipps and others, that they conversed with the obligor in the instrument, and that he uniformly recognized its genuineness.

It is also objected that in setting down the cause for hearing, it is not stated that it was not done upon said exhibit. The record states that the cause was set down upon bill, answers and depositions. Now, the exhibit in question was literally copied into the bill; it was made the subject of proof; the whole case turned upon it; it was before the Court; and the mere omission to state, in setting down the cause, that it was set down specially upon it, as well as other matters, can be no more than one of those mere “matters of form” which Story says will not cause a reversal.

R. L. Walpole, for the plaintiffs. J. Morrison and S. Major, for the defendants. Per Curiam.

The decree is affirmed with costs.