Doe ex dem. White v. Scoggin

Blackford, J. This was an action of ejectment on the demise of Thomas J. White. The heirs of Eli Scoggin were the defendants. The suit was brought for an undivided fifth part of a certain quarter section of land situate in Dearborn county. Plea — not guilty. The cause [209] was submitted to the Court, and judgment rendered for the defendants. The parties all claim under one Alexander White, deceased. The lessor of the plaintiff relies for his right to the land sued for, on the ground that he is one of the five heirs of said Alexander White. The defendants claim the land in consequence of a purchase thereof at a sale ordered by the Circuit Court in a partition-suit brought by some of the other heirs of said Alexander White. On the trial, the plaintiff proved & prima facie right to recover. The defendants offered in evidence a transcript of the record of said partition-suit. The plaintiff objected to the transcript as evidence, on the ground that the notice of the application for partition had been published for only three weeks. The objection was overruled, and the transcript received in evidence. The admission of this transcript in evidence is the" only error assigned. The act of 1831, under which the petition for partition was filed, required notice of the application to be published for, at least, four weeks. R. C. 1831, p. 387. There are in the transcript two affidavits of the editor of the newspaper in which the notice was published; the first stating that the publication was made three weeks, and the second, that it was made five weeks. The second affidavit, however, was not made and copied into the record until several years after the' trial. The second affidavit was, by order of the Court, inserted in the record nunc pro tunc, to correct an alleged mistake in the first affidavit as to the time the notice had been published. The transcript of the partition-suit, which shows that the petition was filed in the clerk’s office of the Circuit Court in vacation, contains the following entry made at the next term of the Court: “ And whereas afterwards, to-wit, on Monday, the 25th day of March, 1833, being the first juridical day of the March term, 1833, come the parties by their attorneys, and, on their agreement, notice of this motion is now entered, and the Court will hear the [210] said petition, and notice during the present term.” Again: At the term next after that in which said entry was made, there is the following entry: “And whereas afterwards, to-wit, on Thursday, the 3d of October, 1833, being the ninth juridical day of the September term, 1833, before the judges aforesaid, in chancery sitting, come the parties, and thereupon also comes the said Arthur St. Clair Vance,” &c., commissioner, &c. D. S. Major, for the plaintiff. J. Ryma?i, for the defendants. What would have been the consequence, had said appearances of the defendants not been entered in the partition-suit, we shall not stop to inquire. None of those defendants, at all events, after said appearances, can object to the proceedings in that suit, on account of their want of notice. It is true, the present lessor, who was one of the defendants in the partition-suit, was an infant, and the first appearance was by attorney. The record of that suit, however, shows that this lessor had a guardian; and his appearance, therefore, by attorney, is not objectionable. Doe d. Martin v. Brown et al., 8 Blackf. 443. The second appearance must, of course, be considered legal. We think, therefore, that the objection to the transcript of the record of the partition-suit was correctly overruled. Per Curiam. The judgment is affirmed with costs. J. S. Scobey, for the plaintiffs. A. Davison, for the defendants.