25 Ind. 510 | Ind. | 1865
Huntington filed his complaint against Skeen and McQuiston, for assault and battery and false imprisonment. The summons was returned as follows: “Served this summons by leaving a certified copy of the same at the residence of John G. licQuiston, and by reading to Jeremiah JD. Skeen.” Skeen appeared in court and filed an affidavit setting forth that at the time of making the arrest alleged in the complaint he was the “deputy of McQuiston, who was provost marshal, under the authority of the President of the United States, for the fourth congressional district of the State of Indiana, and that said McQuiston has continued to hold said office of provost marshal from that time to the present, and this defendant has continued to be the deputy of said McQuiston till this time.” The affidavit was accompanied by a bond, conditioned that the appellants would file the process and proceedings against them in the Circuit Court of the United States for the district of Indiana9 on the first day of its next session, and would appear and
The only questions presented by counsel are: 1. Was the service upon McQuiston sufficient to authorize a judgment by default against him? 2. Did the court below err in refusing to certify the cause to the Circuit Court of the United States ?
The question of service we cannot consider, as it has been ruled by this court that where judgment has been taken by default, a motion to set aside the default, or proceedings for relief from the judgment, or to review it, must precede an appeal to this court. Blair et al. v. Davis, 9 Ind. 236; Harlan et ux. v. Edwards, Adm’r, 13 Ind. 430; Frasier et ux. v. Hubble, id. 432; Kirby v. Robbins, id. 470. These cases have been consistently followed, and must be regarded as the rule in this court.
The 5th section of the “ act relating to habeas corpus, and regulating judicial proceedings in certain cases,” passed by the Congress of the United States, and approved March 3, 1863, provides “that if any suit or prosecution, civil or criminal, has been or shall be commenced in any state court against any officer, civil or military, or against any other person, for any arrest or imprisonment made, or other trespass or wrong done or committed, or any act omitted to be done, at any time during the present rebellion, by virtue or under color of any authority derived from, or exercised by or under, the President of the United States, or any act of Congress, and the defendant shall, at the time of entering his appearance in such court, or if such appearance shall have been entered before the passage of this act, then at the next session of the court in which such suit or prosecution is pending, file a petition stating the facts,, and verified by
In the case now under consideration, the affidavit doeg not aver that the false imprisonment with which the appellants are charged was made by virtue or under color of any authority derived from, or exercised by or under, the President of the United States, or any act of Congress, and the court therefore properly refused to sustain the motion to stay proceedings. If the act complained of was performed under such authority, the failure to so aver in the affidavit may have resulted, accompanied as it was by a neglect to make any defense to the action, in great wrong to the appellant who filed the application, but that injury results from the gross neglect of the person who prepared the affidavit, and to him he must look for relief. We do not presume that the counsel appearing in this court are chargeable with such failure.
The appeal of McQuiston is dismissed, with costs, no question being properly presented by the record for review in this court, and as to the appellant Skeen, the judgment is affirmed as to the error assigned, with costs.