Swinney v. Nave, 22 Ind. 178

Swinney v. Nave

22 Ind. 178 | Ind. | 1864

Perkins, J.

This was au action hy Nave and wife against Swinney, charging him with slandering Mrs. Nave on, &c., •“•and at divers other times,” by speaking, &c.

■ The .defendant moved to strike from the complaint the words ■“ and at .divers other times,” and the Court overruled the motion, if the clerk is to be believed, but the Court has not so stated in any bill of exceptions.

There was a trial, resulting in a verdict and judgment for -the plaintiffs for 1.000 dollars.

Touching the bill of exceptions which is copied in the record, the clerk, in return to a certiorari, says: “That in the month of November, -or in the early part of December, 1862,1 was directed by an attorney of defendant, Swinney, to make .a certified transcript of the papers and proceedings in this tease: that among those papers was one purporting to he a *179bill of exceptions, filed June 28, 1862, but the same was not signed by the judge of the Court. The bill was afterwards taken from the office by said' attorney and subsequently returned to it, changed, to some extent in its contents, and signed by the judge of the Court, when it was recorded in the transcript as it now appears, purporting to have been filed, and signed June 28, 1862.”

The cause was tried in the Allen Circuit Court, April 28, 1862, and seventy days were given within which to file a bill. of exceptions.

'It is thus plain that the perfected bill of exceptions was not legally placed upon l’ecord.

A bill of exceptions can .not be filed by the judge himself, at all events, without the consent of both parties to the causé, after the time fixed in term time, being the term at which the cause is tried, has elapsed; 19 Ind. 138; id. 178; if such expiration occurs in vacation. If a motion is made to strike out a part of a pleading, and exception is taken to the ruling of the Court on such motion, the facts should be shown by a bill of exceptions. See Matlock v Todd, 19 Ind. 130.

Such motion to strike out need not be in writing unless a rule of the Court in which it is made requires that it should be.

In this case the motion to strike out should have been sustained. Slanderous words spoken at a given time, ineluding all such spoken at 'One time, constitute one cause of action. The same or other slanderous words, spoken at another time, .constitute another cause of action: see Digest, tit. Libel and Slander; and though in a suit for slander, the plaintiff should, according to the spirit of the code, include all causes of action for slander, against the defendant up to the commencement of the suit, yet each cause should be set forth in a separate paragraph, to avoid the vice of duplicity. Trespass upon real estate may he laid with a continuando. 1 Chit. PI. 394. *180So, it is said, may criminal conversation, the wrong- complained of not being- the assaults on the wife, in such action, but the consequent corruption of the body and mind of the wife. 2 Chit. Pl. 643, note. But, says Chitty, vol. 1, supra, where the act complained of is single in its nature, as an assault, &c., it is ground for special demurrer, if it be laid to have been committed on'divers days and times. See Mitchell v. Neale, Cowper 828, English v. Purser, 6 East. Rep. 451. Duplicity in pleading is the including, even though stated with technical deficiency, two substantially good causes of action or defence in one paragraph. Thompson v. Oskamp, 19 Ind. 399, lays down this point inaccurately. Steph. on Pl. 259. But the objection is not available when raised for the first time on appeal.

Moses Jenkinson and L. G. Jacoby, for the appellant. William S. Smith, and John Morris, for the appellees.

As to suits for tortious injuries to the wife, and proper complaints for such, see Rogers v. Smith, 17 Ind. 323.

It is.not necessary, though permitted by the code, to answer in mitigation in actions of slander. Matter in mitigation may be given under an answer in justification. See Dig. tit. Libel and Slander. The provision in the code allowing answers in mitigation was proper in New York, under the decisions in that State upon the common law rule of evidence, but was unnecessarily copied into our code.

Per Curiam.

The judgment below is afih-med, with 1 per cent, damages, and costs-