29 Ind. 546 | Ind. | 1868
On the 2d of July an order was entered «granting a rehearing, and ruling the appellee to show cause
The appellee filed the following answer: “blotico having been served on the appellee, by order of this court, to show cause why the said opinion of the court ought not to be withdrawn and the case dismissed at the cost of the appellee, it becomes necessary for her to show to the court the true nature of this case; and also the great importance of the same, and why the said judgment of this court should not be disturbed.
“The Junction Railroad Company is a corporate body, created by special charter of the General Assembly of Indiana, during the year 1848, and was organized and is sti'll acting under the same, and amendments thereto. In 1853 the Ohio and Indiana Railroad Company became a corporation under the general railroad laws of Indiana, and after-wards was merged into the Junction Railroad Company, under and by virtue of articles of agreement between the companies, under the general laws of Indiana, authorizing the same. The whole line of road extended from Indianapolis, in-the State of Indiana, to Hamilton, in the State of Ohio, a distance of almost one hundred miles. The original amount of the capital stock of the first named company was only $250,000, but by the ninth section of the special charter, power was given to increase this capital stock to any amount necessary to construct and complete the road; but the mode and manner in which this inci’case was to bo made is not prescribed. The special charter of the Junction Railroad Company authorized the receiving of subscriptions in real estate, materials and labor, as well as money, and from time to time subscriptions were received from sundry per
“ After various conferences with the company, the said Reeder, at the suggestion of the company, concluded to make atest case in the state courts, in order to settle the question of the validity of the issuing of the capital stock, as'tho greater part of his stock was issued to him when contractor, and before: he became a. director of the company. The suits of
“A full and fair hearing was had before the judge of said circuit on the complaint, answer and demurrer, and judgment given- on the same; an appeal was taken to your Honors, and there, before your honorable court, the cause was fairly stated, and fair and full briefs w.ere filed, each doing his best to sustain his points. These briefs we now append, to show the earnestness and zeal of each party to present fairly and fully the strong points in the case.”
The record, the affidavits, certificates and letter, show that James Smith is.a fictitious person; that there never was any such transaction as charged in the complaint; that Bennett, who appeared for the appellant in this court, was retained by the railroad company; that the interests of Reeder and the company are not antagonistic; that the litigation ivas intended to settle a question involved in a real suit by Kent against the appellee; that the case was submitted to the judge in vacation, at a place'outside of Union county; that in fact there is no such judgment or record in the Union Circuit Court.
It is not often that such a case as this occurs, and, for the credit of judicial proceedings, it is to be hoped that it never will again. The proceeding is a contempt of this court, and
In the language of Chief Justice Taney, in Lord v. Veazie, 8 IIow. 254, “It is the office of courts of justice to decide the rights of persons and property, when the pei’sons interested cannot adjust them by agreement between themselves, and to do this upon the full hearing of both parties. And any attempt, by a mere colorable dispute, to obtaizi the opinion of the court upon a question of law which a party desires to know for his own interest or his own purposes, when there is no real and substantial controversy betweezi those who appear as adverse parties to the suit, is an abuse which courts of justice have always reprehended and treated as a punishable contempt of court.” That coui’ts will ziot take cognizance of suits which appear to be fictitious has long been .recognized as a rule of law by this court. Brewington v. Lowe, 1 Ind. 21; Hotchkiss et al. v. Jones, 4 Ind. 260. In Cleveland v. Chamberlain, 1 Black 419, the pi’inciple of Lord v. Veazie was reaffirmed; affidavits of third parties interested in the question involved were heard to show that the case was not eanied on in good faith between the paz’ties, who were nominally the appellant and appellee, and the appeal was dismissed.
Azz attorney takes an oath “ faithfully and honestly to dischazge the duties of an attorney at law;” among these are, to maintain the respect that is due to the coui’ts of justice; to counsel or maintain such actions, pi’oceedings or defenses only as appear to him legal and just; to employ, for the purpose of maintaining the causes cozifided to him, such means only as are consistent with, truth.” With such an oath resting upon the conscience, in view of these simple but high and important duties, it is difficult to conceive how an attorney of this coui’t, sustaining a respectable standing at home, could be guilty of the offense brought to light by this record. It is due to the profession to say that such occui'rences are very rare.
The appeal.is dismissed at the cost of the appellee, including the costs of this motion.