68 Ind. 70 | Ind. | 1879
Lead Opinion
The material facts of the complaint filed by the appellee, against the appellants, are the following :
That Carey B. Johnson and others named, on the 2d day of October, 1871, filed their complaint in the Porter Circuit Court, against the plaintiff, alleging that they were the ownei’s in fee-simple of certain lands, describing them, lying in Porter county, State of Indiana; that said lands were well timbered,, the timber being of great value : hut the plaintiff avers that he was at the same time the owner and in possession of said lands, and has been the own er and in possession thereof ever since ; that the said defendants, after filing their complaint, procured a restraining order to he issued thereon, by the lion. Hiram A. Gillett, judge of the court of common pleas, by which order this plaintiff was prohibited from cutting and removing, impairing, or in any manner interfering with, the timber or trees being or standing on said land, until the final de
“We undertake that the plaintiffs shall pay to the defendant all damages which he may sustain by reason of the injunction in this action.
(Signed,) “ Carey B. Johnson,
“ T. J. Merrifield,
“ Younger Frame.
“ Appi’oved by me, this 7th day of October, 1871.
“ Ii. A. Gillett,
“Judge 16th C. P. Dist.”
Which said bond ivas signed as above, by said parties, and approved by said judge as above; that the plaintiff appeared in the Porter Circuit Court to said action, and moved the court to dissolve said injunction; that the said defendants appeared to said motion and resisted the same, and procured a continuance of said injunction, all of which will appear by the records of said court; that said injunction remained in full, uninterrupted and continued effect from October 7th, 1871, until October 12th, 1875, at which time the said cause was dismissed, — as will fully appear by the records, — which was the final determination of said suit against this plaintiff; that, at the time of obtaining said injunction, the plaintiff was engaged in cutting timber and wood off of said land, and had rented a saw-mill for one thousand dollars per year, to saw said timber, and had made a large number of contracts for the sale of wood, timber and lumber, which had been, and was to be, cut from said land, by which he would make large profits, to wit, tivo thousand dollars ; that, by reason of the granting of said injunction, he was prevented from using said mill, and from carrying out his said contracts for wood, timber and lumber, to his damage of two thousand dollars; that said land was salable, and could have
A demurrer, alleging as ground that the complaint does not contain facts-sufficient to constitute a cause of action, was overruled, and exceptions reserved.
Answer, general denial; trial by court; finding for the appellee, and judgment rendered, over a motion for a new trial and exceptions, upon the finding.
The appellant makes the following points against the sufficiency of the complaint:
1. That it fails to show any authority on the part of the said judge to grant the injunction ;
2. It does not show that any petition, complaint, affidavit, or written statement whatever, ’ setting forth any ground or prayer for such injunction, was ever made, or signed, or swqrn to, or filed, or in any manner presented to said judge bv the plaintiffs in the suit in which said injunction is alleged to have been granted ;
3. It does not show that any cause for granting said injunction was shown to said judge in any manner whatsoever;
5. The complaint does not show any state of facts that would authorize said judge to act m the premises and issue said writ;
6. It does not show that any copy of said injunction was ever issued by the plaintiffs in said action, or that any, in fact, ever did issue ; nor does it show that said injunction, or any copy thereof, was ever served upon the appellee.
Ueither of these points, as it presents itself to us, seems to be well taken.
1. The courts must judicially know that a judge of the court of common pleas, at that time, could grant an injunction on a complaint pending in the circuit court, in vacation. So was then the law. 2 G. & H. 131, sec. 136; The City of Columbus v. The Hydraulic Woollen Mills Co., 33 Ind. 435; Jenkins v. Parkhill, 25 Ind. 473.
2. It is not necessary that a complaint on an injunction bond should set out the complaint, or any part of the record, specifically, upon which the injunction, under which the bond ivas given, was granted. The record is not the foundation of the action, though a necessary part of the evidence to support it. Besides, the complaint does allege that a complaint ivas filed in the Porter Circuit Court, averring certain facts, upon which Jhe injunction was granted. For is it necessary to make the complete record, nor indeed any part of it, an exhibit, as the bond, and not the record, is the foundation of the action. Trueblood v. Hollingsworth, 48 Ind. 537; Winship v. Clendenning, 24 Ind. 439; Sipe v. Holliday, 62 Ind. 4. See, also, Boden v. Dill, 58 Ind. 273.
4. All persons must take notice, and the courts must "know, when the circuit courts of this State may hold their regular sessions. It is matter of public law, and need not be averred. When it is alleged in the complaint that the judge of the court of common pleas in Porter county granted an injunction, on the 7th day of October, 1871, in a case pending in the Porter Circuit Court, all the world must know, by the law fixing the times of holding the Porter Circuit Court, that it was not in session at that time.
5. The complaint shows that a suit for an injunction was pending in the Porter Circuit Court, a court of competent jurisdiction. The law informs us that the judge of the court of common pleas had the power to grant the injunction. It is then averred that he did grant it, and that the bond sued upon was given in pursuance of the injunction. This is sufficient. It is not necessary to show in the complaint, that the complaint upon which the injunction was granted was sufficient to authorize it, nor to show that the proceedings were regular. See the authorities cited, supra.
6. It was not necessary to specifically aver that a writ of injunction was issued and served upon the plaintiff; the averments, that by the restraining order the plaintiff was prohibited from cutting or removing timber from lands which he alleged to be his own, and that the injunction continued in full and uninterrupted effect for the given period of time stated-in the complaint, are sufficient.
The questions of the insufficiency of the evidence to sustain the finding, and the excessive amount of damages assessed, are also discussed by the appellants; but we do not see that either of these questions is presented by the record. "We find a bill of exceptions in the transcript, which concludes with the following sentence : “And this was all the evidence given in the case;’ but we also find the following statement in the bill of exceptions, immediately after the introduction of the injunction bond, which is the foundation of the action : “ The plaintiff then introduced the order of injunction issued on the 7th day of October, 1871, in said case of Carey B. Johnson and others, against Brands Weston, and all the papers and records of, and the order of dismissal in, said case of Johnson et al. v. Weston (here insert)but, except the restraining order granted by Judge Gillett, none of these papers nor records, nor the order of dismissal, can be found in the bill of exceptions. It is plain, therefore, that all the evidence given in the case is not in the bill of exceptions; and, the bill not containing all, it is the same, as to the questions under discussion, as if it contained none. The finding and amount of damages, therefore, must be presumed to be right, and, for any thing that we can decidé, must stand as they are, Blizzard v. Bross, 56 Ind. 74; Gale v. Parks, 58 Ind. 117; Kimball v. Loomis, 62 Ind. 202; May v. Pavey, 63 Ind. 4.
The judgment is affirmed, at the costs of the appellants.
Rehearing
On petition for a rehearing.
— In their petition for a rehearing, the appellants desire us to decide the question of the admissibility of a foreign will as evidence, before it had been admitted to probate in some court of competent jurisdiction in this
From a defect in the transcript of the record, we were unable to reach the merits of the questions presented by the motion for a new trial. For this reason the appellants urge us to grant them a rehearing, that they may obtain a writ of certiorari, and have the transcript perfected, arid they file an affidavit as ground for a certiorari, and also an affidavit excusing their delay in not applying for the writ before the case was decided. The affiant, the principal attorney for the appellants in the case, states; “ That from an examination of the record in this case, in August last, he, for the first time, came to the conclusion that a writ of certiorari was necessary to complete the record in this ease, and determined to apply for said writ at the next November term of this court; that he attended said term of this court for that purpose, but a press of business, and the missing of a train of cars, prevented him from reaching this court until after the call of the docket had been commenced on Wednesday morning of the first week of said term ; that he then believed said court would be in session upon the following (Thursday) morning, and that there would then be an opportunity to make the motion for said writ; that, in the afternoon of said Wednesday, the affiant visited the library of the Supreme Court, for the purpose of preparing the papers necessary for the application of said writ, and there learned to his surprise that said court had adjourned immediately or soon after the call of the docket had been finished, and that the judges had left for their several homes, which information the affiant believed and relied upon'; that an urgent press of business in the circuit courts of this State, in
The trauseript in this case was filed in this court January 19th, 1878 ; the appellants’ brief was filed March 12th, 1878; the cause was submitted May 29th, 1878; and the case decided December 11th, 1879. It will thus be seen that the appellants had almost two years to perfect the transcript of the record, after it was filed in this court, and before the case was decided. The affidavit shows that counsel for appellants had actual knowledge of the defect in the transcript, in August before the case was decided — a period of four months. After this knowledge, it was not necessary to wait until the November term ensuing to apply for a writ of certiorari. A motion for the writ could have been made in this court, upon any week day in the year, by filing it in writing with the clerk, and, if so made, would have been acted upon at once, if the judges were at the capítol; if not, immediately after their return; and the presence of the counsel at the time would not have b necessary. This has long been the settled practice.
The petition for a rehearing is overruled.
