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Gregg v. Matlock.

of the periods of limitation.” Here, the reply alleges, that the cause of action accrued in April, 1862, and that the defendant left the State on public business, as a volunteer soldier in the army of the United States, in August of the same year, and so continued absent from the State, as an officer in the army of the United States, until September, 1864, a period of over two years; and that the suit was commenced on the 28th of November, 1868. It thus appears that the suit was commenced within six years and eight months next after the cause of action accrued; but if from that period there be deducted the time the defendant was absent from the State in the army, as alleged in the reply, a period of over two years, then the statute could not have run six years before the commencement of the suit. This leaves to be considered the question, does the absence from the State as a volunter soldier or officer in the army of the United States constitute an absence on public business within the meaning of the statute? We think it does. The statute does not limit the exception to any particular kind or form of public business. A service in the army of the United States is a public service, required for the public good, and every person so employed is engaged in public business.

We think the reply a good one, and that the court erred in sustaining the demurrer to it.

Judgment reversed, with costs, and the cause remanded, with directions to the circuit court to overrule the demurrer to the reply, and for further proceedings.

Ray, J.-I cannot concur in the opinion of the majority of the court. Statutes of limitation are for the repose of debtors. It has been held, that a volunteer soldier or officer in the army of the United States does not lose his residence; may

be sued, and service may be had upon him by copy left at his place of residence. If thus exposed to litigation while absent, and yet excluded from the benefit of the statute, his absence “on public business” simply imposes upon

he

Spaulding and Others v. Baldwin.

him a burden from which those who avoid such service are
exempt. I cannot give the statute a construction which, in
place of giving peace, prolongs litigation.

C. C. Nare, for appellant.
L. M. Campbell, for appellee.

SPAULDING and Others v. BALDWIN.

31 376 149 394

JURISDICTION.—Pleading.-In pleading a record of a judgment, it is unnec

cssary to show by averments that the court bad jurisdiction. SAME.—Decedents' Estates.Proceeding to sell Real Estate.-An application to

se!l lands in the course of administration stands upon the footing of an or

dinary adversary judicial proceeding in a court of superior jurisdiction. SAME.— Collateral Proceeding.–Where jurisdiction has been acquired in such

a procecding, subsequent crrors in the course of its exercise-as in the order of sale and its confirmation-however grave and glaring, will not subject the judgment to successful collateral attack. PLEADING.Exhibits.- Where, in an action to recover possession of real cs

tate, the defendant claims title through a sale and conveyance to him under an order of court granted upon the application of an administrator, to make assets to pay debts of thic deccdent, the answer need not aver that a real estate bond was filed, but copies of the record and the deed must be exhibited as parts of the answer.

APPEAL from the Blackford Circuit Court.

FRAZER, J.—This was an action to recover the possession of real estate, brought by the appellants against the appellee. An answer and cross complaint was filed, which was held good on demurrer; and we are to determine whether the court below erred in overruling the demurrer.

The pleading demurred to was an attempt to show title in the defendant. It alleged, that one S. had died, intestate, seized in fee simple of the land; that his administrator filed in the probate court a proper memorial praying an order to sell the land to make assets to pay the debts of the intestate; that at the November term of that court for 1849, it was

Spaulding and Others v. Baldwin.

ordered that a sale be made, at private sale, at not less than two-thirds of $325, the appraised value of it; that at such private sale the defendant purchased it for the price of $216.66, which was fully paid; that this sale was confirmed at the August term, 1850, of said court, and a deed therefor executed; that said orders of the probate court remain in full force. Copies of the record and deed were not made parts of the answer.

It was long ago settled, that in pleading a record of a judg. ment, it is unnecessary to show by averments that the court had jurisdiction. This rule was founded in convenience, to avoid prolixity in pleading, though more anciently it was otherwise. This objection to the answer cannot therefore be allowed. Murray v. Wilson, 1 Wils. 316; Lane v. Robinson, 2 Mod. 102.

So, also, as to the objection, that the answer discloses that the sale, being private, was ordered to be made for not less than two-thirds of its appraised value—the law requiring the full appraised value--and that the sale was for two-thirds of a cent less than two-thirds of the appraisement. That the probate court ordered and confirmed such a sale, may have been error which would have reversed its judgment; but it does not follow that the proceeding is to be held void when questioned collaterally. The order of sale and its confirmation were steps in the exercise of jurisdiction. If that had been acquired, subsequent errors, such as these, however grave and glaring, would not subject the judgment to successful collateral attack. Crossley v. O'Brien, 24 Ind. 325, is not in conflict with this view. There was no collateral questioning of the proceedings in that case. direct appeal in the cause; but in the course of the opinion the distinction between proceedings essential to jurisdiction and those in the course of its exercise afterwards, was stated. Nor does The Evansville, fc. R. R. Co. v. Evansville, 15 Ind. 395, touch the present question. Nor can decisions as to the special statutory powers conferred on courts, where the statute must be followed at every step, in order to give va

It was a Morrow v. Brown.

lidity to the exercise of the power, be deemed in point upon the present question. It has been so long settled in this State as to close the question against further controversy, that an application to sell lands in the course of administration stands upon the footing of an ordinary adversary judicial proceeding in a court of superior jurisdiction.

Whether the failure to give a real estate bond would render the sale void, need not now be decided. That question does not arise, the answer averring nothing upon that subject, and it being unnecessary that it should aver the fact. The question could have been made by a reply impeaching the validity of the sale for the want of such bond, and if, in fact, none was given, the defendant would have been driven to demur thereto, thus presenting the question.

Was it necessary to exhibit, as parts of the answer, copies of the decree and deed, or either of them? They constituted the foundation of the defense, and the seventy-eighth section of the code imperatively requires the copies. The cases holding that this defect can be reached by demurrer are too numerous to require a specific citation of them. On this account the demurrer should have been sustained.

Judgment reversed, with costs; and the cause remanded, with directions to sustain the demurrer:

J. W. Gordon and W. March, for appellants.
J. Brownlee, for appellee.

MORROW v. BROWN.

Consideration.— Failure of.- Promissory Note.-Suit on note. Answer, that

the note was given for the exclusive right within a certain county to a patent invention, known as, &c., under letters patent from the United States to a person named, which was an infringement of a patent theretofore issued by the United States to another patentee named, and precisely like the

Morrow v. Brown.

latter in every important particular; that the purchase was made and the note given upon the representation that said invention had never been used except under the first mentioned patent, whereas the right to use it under the other patent had been sold and the invention used over the entire county, and the sale of the right under said first mentioned patent was rendered

of no valuc. IIeld, that the answer presented a good defense.

APPEAL from the Howard Circuit Court.

Ray, J.-Suit upon a note. Answer, that the note was given for the exclusive right within the county of Wayne to a patent invention, known as the weather or door strip, under letters patent from the United States to one Joseph Chadwick; that said patent was an infringement of a patent theretofore issued by the United States to one J. 0. Clay, and the same were precisely alike in every important particular; and that the purchase was made and the note given upon the representation that said invention had never been used except under the Chadwick patent, whereas the right to use the same under the Clay patent, had been sold and the same used over the entire county, and the sale of the right under the Chadwick patent was rendered of no value. Judgment for the appellee.

We have examined the evidence, and find it fully sustains the answer. We have no brief from the appellee, and can see no evidence to support the finding and judgment of the court.

Judgment reversed, and the cause remanded for a new trial. Costs here.

J. H. Kroh and C. N. Pollard, for appellant.

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