Loveland v. Jones

4 Ind. 184 | Ind. | 1853

Perkins J.

Motion to set aside an execution.

The record in the cause shows a judgment in the Miami Circuit Court in favor of Horatio H. Hall against John JSf. Jones, rendered in a suit in which Loveland and Ross were attorneys for the plaintiff. It further shows a motion to set aside an execution said to have been issued on said judgment, and also a cross motion for leave to amend said execution. It shows that the latter motion was denied, and the former granted. It appears that separate notices of the motion to set aside said execution were served on Hall, the plaintiff in the judgment, and on Loveland and Ross, his attorneys, and that the Court rendered separate judgments on said notices, one against said Hall, and one against said Loveland and Ross, each being for the costs of the motion setting aside the execution. There is no bill of exceptions in the case, and we are, consequently, not advised as to the reasons governing the action of the Court below. Loveland and Ross bring the case to this Court, and complain of the judgment for costs against them.

The record shows that Hall appeared in person, in answer to the notice of the motion served on him; and that subsequently Loveland and Ross appeared in person in answer to the notice of the motion to set aside above mentioned, served on them; that the motion was docketed against them personally, and submitted to and decided by the Court on its merits. No objection appears to have been made below by them to the proceedings, and they have brought a transcript of all of those proceedings here. Why there was a separate docketing of the motion against the attorneys—why those attorneys appeared to it without objecting or informing the Court upon the subject, &c,, we know not.

The conduct of the attorneys may have been such, in the premises, as to justify the visiting of them with costs, and, in the absence of evidence to the contrary, we must so presume. And if their conduct did justify such visitation, it was in the power of the Court to inflict it upon them. Kane v. Van Vranken, 5 Paige 62.—Powell v. Kane, id. 260.

D. D. Pratt, for the plaintiff. A. A. Cole, for the defendant. Per Curiam.

The judgment is affirmed with costs.