121 Ind. App. 686 | Ind. Ct. App. | 1951
Lead Opinion
OPINIÓN ON PETITION FOR WRIT OF MANDAMUS
Á petition , for writ of mandamus was filed by the State, upon the relation of appellants,
It is alleged that the bill of exceptions containing the evidence was tendered to the judge, but that he refused to sign and approve the same, refused to make an entry showing the tender, and that the court reporter, upon direction of the judge, refuses to sign a certificate certifying to the transcript of the evidence as prepared by her.
We now have before us the returns of the judge of the Jackson Circuit Court and the returns of the clerk and reporter thereof. We also have the response of the relators to the returns of the judge and reporter. From these it appears that a question has arisen as to whether
We have concluded that all the evidence in the case should be brought before us, in order that the parties to the case below may fully present their respective contentions.
It is therefore ordered that the respondent, the Honorable George H. Gossman, as judge of the Jackson Circuit Court be, and he hereby is, ordered to sign, or correct and sign, the bill of exceptions containing all the evidence in the case upon the same being tendered to him. It is further ordered that said bill of exceptions include all the evidence, including that relating to the issues formed on appellants’ complaint in ejectment as well as that relating to the issues formed on the cross-complaint.
It is further ordered' that the respondent Edna Schneider, Reporter of the Jackson Circuit Court, execute her certificate to the transcript prepared by her, as required by § 4-3505, Burns’ 1946 Replacement, when the same is presented to her, said certificate to cover all the evidence in the case, whether offered as to the issues under the complaint or the cross-complaint.
A certified copy of this opinion, duly served upon said judge and reporter, shall be considered the mandate of this court without special writ.
Note. — Reported in 98 N. E. 2d 189.
Opinion on the Merits
OPINION ON THE MERITS
Appellants filed their action in ejectment against appellees. Appellees filed their an
The cause was submitted to the court for trial. At the conclusion of appellants’ evidence, the court, upon motion of appellees, entered a finding and judgment against appellants upon their complaint. Further evidence was heard and after having the matter under advisement for a few months, the court entered judgment in favor of appellees on their cross-complaint.
.Appellants filed a motion for new trial following each of such judgments. Appeals from both judgments have been consolidated for briefing.
Appellees have not filed a brief in support of the judgments in their favor. Appellants’ brief, in our. opinion, makes an apparent or prima facie showing of. error.
The questions presented by appellants are. of such a nature that, in our opinion, we should not pass upon them in the absence of a brief from appellees.
For the reasons stated in Meadows v. Hickman (1947), 225 Ind. 146, 73 N. E. 2d 343; Associates Investment Co. v. Snyder (1949), 119 Ind. App. 20, 83 N. E. 2d 622; and City of Connersville v. Adams (1951), 121 Ind. App. 353, 98 N. E. 2d 230, and upon the authority of those cases, the judgments are reversed and cause remanded with instruction to grant appellants a new trial on all issues in this case, including those presented by the complaint and the cross-complaint.
Bowen, C. J., dissents with opinion.
Dissenting Opinion
DISSENTING OPINION
I cannot agree with the majority opinion in this case.
It is undisputed that the record does not show possession in appellants. The appellants are claiming as a remote. grantor of the appellees, and the record does not. show that at or near the time the appellees made a deed to the grantors of appellants that the appellees were then in possession of such premises.
The appellants in their brief concede the rule that where plaintiff in ejectment relies upon a record or paper title, he must show a regular chain of title from the government or some grantor in possession, or he must trace his title from the common source from-which he arid his adversary claim. But no length of chain or paper title which does not reach the sovereignty of the soil is sufficient in itself to constitute prima facie evidence of title; there must, in addition, be sufficient proof that at least one of the grantors had been in possession of the premises at or near the time of his. grant, citing ..-.18-Ám. Jur. 27, §25.
' In my'opinion, the record and the briefs of appellants do. riot disclose a prima facie showing of error, and this court, under the circumstances shown by the record, should order the filing of a brief on behalf of appellees, and this cause should; not be summarily reversed by reason of the failure of the appellees, to file á brief.
NOTE. — Reported inT02.N. E. 2d 208.