| Ind. | May 15, 1877
Complaint by appellee against the appellant, in two paragraphs.
The first paragraph is generally for the use and occupation of certain lands.
The second paragraph avers a decree of foreclosure of a
A demurrer, alleging the insufficiency of the facts stated, was overruled to the second paragraph of the complaint, and exception reserved.
Answer in general denial; trial by the court; finding for the appellee; motion for a new trial overruled; exception; judgment; appeal.
The appellant discusses two points in his brief:
1. The overruling of the demurrer to the second paragraph of complaint, which he insists is error; and,
2. The admission of the decree on the foreclosure of the mortgage, which he insists was incompetent evidence.
1. The only point he makes on the demurrer is the unconstitutionality of the last clause of section 2 of the redemption act of June 4th, 1861, 2 R. S. 1876, p. 220, sec. 2, enacting that if the premises are sold and not redeemed at the end of the year by the judgment debtor, as provided in the act, he shall be liable to the purchaser for their reasonable rents and profits. The ground taken is, that this provision is not included in the title of 'the act. Ve think the clause is constitutional, but we need not pause to settle the constitutional question, as we think the appellee might have recovered without the enactment complained of. It does not create or grant a new right. An action to recover rent for use and occupation would lie at common law; besides, we have another statute still more liberal than the clause we are considering, in the act of 1861, namely: “The occupant without special contract, of any lands, shall be liable for the rent, to any person entitled thereto.” 2 R. S. 1876, p. 342, sec. 14. After the year expired, and the purchaser under the decree of foreclosure had received the sheriff’s deed, his title related back to the time of the sale; and we think he is, and would have
If this view is correct, the demurrer was properly overruled.
2. It is alleged that the record of the decree offered in evidence does not show that the court rendering it had jurisdiction over the person of the defendant therein, because it does not show any process or service upon it, against him. The language of the transcript is as follows : “And also files the following proof of publication in this behalf in these words (h. i.), audit appearing to the satisfaction of the court upon said proof of publication, that the defendants, George H. Gale and Ellen B. Gale, have each been duly and legally notified of the pendency of this action, for three weeks, more than thirty days pri- or to the first day of the present term of this court, by publication as the law directs, in the LaGrange Standard, a weekly newspaper printed and published in said county, and of general circulation therein. Thereupon said defendants are each three times called, come not, but herein wholly make default.
“And this cause for trial,” etc.
We need not decide that this process and service would have been held sufficient, on a direct appeal from the decree to this court, but we think it is good when the record is offered in a collateral proceeding, though offered in favor of the plaintiff in the judgment.
The distinction between proceedings when attacked on direct appeal, and when attacked collaterally as evidence, must be kept in mind.
It does not appear to us, that the authorities cited by the appellaut bear him out in his propositions. We need not cite them; the principle is familiar.
The appellant insists, that the certificate of the clerk of the court to the transcript is not sufficient, because it does “ not purport to be a full and complete transcript of all the proceedings in said court in the action therein referred
In our opinion, this certificate is sufficient to authenticate all the parts of the record which its terms cover, and that those parts were properly admitted for whatever they were worth as evidence. There are many cases wherein a party desires to use only apart of a record, and if such part is properly exemplified, we think it may be introduced as evidence without requiring the party to obtain the exemplification of the entire record. Indeed, if the original papers were present and offered as evidence, they would have to be introduced separately, as, in that condition, thay are not written on a single roll. The cases cited by the appellant to support this part of his case go to certificates held imperfect for any purpose; not imperfect because they exemplified only a part of the record.
Let it be kept in mind, that, as to this record, we are deciding only a question of the competency of evidence, not a question of the sufficiency of evidence to maintain the title to the land in the appellee.
There is no question of the sufficiency of evidence before us; the bill of exceptions does not purport to contain all the evidence. It maybe that the appellant introduced other evidence in support of his title, a complete record, or a deed, for anything that we can say as the case is presented here. bTor do we decide that the record as offered was not sufficient of itself to maintain the appellee’s title.
We have thus disposed of all the points discussed by the appellant, and are not able to discover any error below.
The judgment is affirmed, with costs.