24 Ind. 133 | Ind. | 1865
Leroy M. Sanders and Frances A., his wife, commenced this action in the court below in April, 1861. They allege in their complaint, that Wright Sanders died seized of a farm in Monroe county, and a tract of land in
Polly Sanders, the appellant, filed a cross-complaint against the plaintiff and her eo*defendants, in which she alleged, in substance, that under and by virtue of the will of Wright Sanders, she had a life estate in the farm, and that a comfortable support was to be furnished her by whichever of the sons resided with her, and that upon her death the same should descend to the one that remained with her, upon the express condition that he should reside •upon the farm, cultivate it, and provide her with a comfortable support during her lifetime; that David married first; that subsequently to the death of Wright, and the marriage of David, the latter and Nathan made an agreement, whereby David agreed to pay Nathan $500, upon the condition that the latter would relinquish • his right under the will to the farm in Monroe county to the former, and would take the land in Owen county; that David quit-claimed to Nathan his interest in the land in Owen county, and the latter quit-claimed to the former his interest in the farm in Monroe county; that Nathan entered into and retained the possession of the land in Owen county until his death; that he died unmarried and childless, and that the appellant inherited one-half of his estate, and his brothers and sisters the other moiety; that David, did not pay Nathan the $500, or any part thereof; that subsequently to tlie death of the latter, she, the said Polly, David, and the administrator of Nathan’s estate, met together, and entered into an arrangement, whereby the administrator released David from the payment of the said sum of money to' him; that Polly gave the administrator a receipt for $500, as the payment to that amount of the sum that was due her as the heir of Nathan; that David agreed and promised to pay her, the said Polly, the $500 so due from pim to the estate of Nathan, which she had so paid for him; that neither David, previous to his death, nor his administrator since his death, had paid said sum, or any
To this cross-complaint the plaintiffs answered in seven paragraphs, the first of which was the general denial; the second, third, fourth and fifth were stricken out on motion, and a demurrer was sustained to the sixth. To the seventh paragraph there was a reply, which is not, however, set out in the transcript.
The issues were, at the April term, 1862, submitted to a jury. The court, at the request of the parties, directed the jury to find specially on the issues, and, at the like request, the court submitted to the jury interrogatories covering the questions of fact embraced in the 4ssues. The jury returned into court their finding, which the court directed to be recorded, but before the record was made the paper on which the verdict was written was lost.
The cause was continued from term to term, until the November term, 1863, when the appellant submitted a written motion, averring the loss of the verdict and diligent search therefor, setting forth a copy of the lost paper, and
The appellees than moved the court to set aside the submission which was made at the April term, 1862; which motion was sustained, and the submission set aside, over the objection of the appellant.
The appellees then dismissed their complaint. ,
The appellant then moved the court for a tidal of the issues formed upon her cross-complaint; which motion the court overruled, and, over the objection of the appellant, dismissed the cross-complaint. Exceptions were taken to all of these rulings.
The appellant was a material party, and had an interest in the verdict, whether her eross-complaint is viewed as a cross-bill in chancery, or a counter-claim under the statute.
The verdict, when returned into court and filed by the clerk, became a “ paper pertaining to the cause,” and a part of the record, without being copied into the order book. 2 G. & H. § 559, p. 273.
A lost verdict, like any other paper forming a part of the record, may be supplied by a proved copy. See 2 G. & H., § 93, p. 113; Lippencott v. Wygant, 2 Ind. 661.
.Judge Hitchcock, in delivering the opinion of the court, in the case of Ludlow’s Heirs v. Johnson (3 Ohio Rep. 553,) correctly says, in speaking of courts of record, that, “ The proceedings, orders, judgments, decrees of such courts do not rest in parol. It is by them records they speak, and there is but one mode, as a general rule, known to the law, by which their acts can be proven, and this is by the record
In the case in judgment, the entry on the order book showed that the verdict had been returned into court; it was a paper under the control of -the court, and the mode proposed to prove its loss and contents is unobjectionable.
The plaintiffs had no right to dismiss their case, to the prejudice of the appellant, at any time after the jury retired to consider of their verdict. 2 G. & H., § 363, p. 216.
We decido nothing further than that the finding of the jury, as offered to be proved, was material to the interests of the appellant. The question as to what relief she is entitled to under it, is not now before us, nor is it important to inquire whether her cross-complaint is a counter-claim, within the meaning of the statute.
The judgment is reversed, with costs, and the cause remanded to said court, with direction to set aside the proceedings subsequent to the motion to prove the loss and contents of the finding of the jury.