151 Ind. 75 | Ind. | 1898
Lead Opinion
This was a proceeding in partition, upon petition and cross-petition, between the heirs at law of Thomas Heady, deceased. It was sought to charge the appellants, Elisha, William and James A. Heady and the appellee, Samantha J. Cofer, with certain advancements, the first three with thirty acres of land each, and the last with a sum of money, nearly $600. The questions here urged were raised in the lower court upon motion for a new trial, and relate exclusively to the admissibility of certain evidence introduced by the appellees for the purpose of
This proposition is not seriously controverted, but it is claimed that subsequent evidence did not show the instrument to have been of the res gestae of the transaction in which the deeds were executed. Evidence was introduced directed to that end, but this, appellants’ learned counsel insist, is not sufficient, and that therefore the admission of the instrument was erroneous. The question arises on the original objection to the instrument, and is not presented upon motion to strike out. As a question of practice, counsel contend, as meets their views, respectively, that, upon the failure to make the connection in the execution of the deeds and said instrument, the court’s duty was to reject the instrument without motion and upon the original objection, or that it was the duty of appellants to move to strike out the instrument, and that having failed in this, no question is presented. It is true that evidence may often erroneously go in where counsel undertake to make a necessary connection of such evidence and fail. It is true also, that the court may be imposed upon by false undertakings of this character. These dangers, however, can be guarded against by requiring the connecting evidence to be first introduced, or, where introduced after the principal feature, .steps are taken to test the strength of the connecting evidence. The court is never obliged to volunteer a ruling upon the sufficiency or strength of the connecting evidence.
In the case at bar the alleged connecting evidence is of doubtful sufficiency, and if a motion had been made to strike out the instrument, the trial court
Other evidence, admitted only as against Samantha J. Cofer, has been mentioned by the appellants as erroneously admitted. They could not have been affected by such evidence. The judgment of the circuit court is affirmed.
Rehearing
On Petition for Rehearing.
The petition for a rehearing denies the jurisdiction of this court. The Appellate Court has only such jurisdiction as is expressly conferred upon it. Branson v. Studabaker, 133 Ind. 147. Partition is not within the jurisdiction conferred by the statute upon the Appellate Court. .(Acts 1893, p. 29), We do not regard the question of jurisdiction as waived by a failure to present it while the appeal was pending in the Appellate Court, and before its transfer to this court. Jurisdiction over the subject-matter is not waived as it is, frequently, over the person. Upon a re-examination of the record we are confirmed