Shiel v. Maffett

Davison, J. This was an action by Maffeit against Shiel [317] upon two promissory notes, and also upon an account. And the cause being at issue, the said Court, on the seventh judicial day of the November term thereof, 1859, caused the following, among other things, to be entered of record, viz., ' “Be it remembered, that on the fifth day of the present term, the Court having begun the trial of the case of John L. Knox v. William Fesler, for contesting an election, and it then appearing that said case would probably occupy all the balance of the term, the witnesses and parties in other cases were discharged; and afterward, on the eighth day of the term, the aforesaid case of Knox v. Fesler was suddenly terminated, on account of the contestee having abandoned the contest; and it therefore became necessary for the Court to adjourn, on account of the witnesses and parties in other cases having been discharged as aforesaid.” And on the same day, and at the same term, the Court made the following order, viz., “It is ordered that this Court now adjourn until February 6, 1860, and that the regular petit jury of this term be then present, without further notice, and that the clerk give notice of this adjournment by publishing a copy of this order in each of the newspapers published in this county, at Martinsville, for at least three weeks, beginning with the first issue of each paper after the date of this order.” The record further shows, that afterward, at the said adjourned November term, held, &c., on February 6, 1860, the present cause was, by consent of the parties, submitted to the Court for trial; that there was a finding for the plaintiff, and that the Court, having refused a new trial, rendered judgment, &c. The ground relied on for a reversal is, that for the adjournment to February 6,1860, there are no reasons shown in the adjourning order; that the adjournment was therefore inoperative, and that the judgment having been rendered at such adjourned term is, consequently, a nullity. This position is untenable. It is true, “the reasons for an adjournment before the close of the term, to a day in vacation, should appear of record.” See Morgan v. The State, 12 Ind. 448; Slaughter v. Gregory, et al. 16 Ind. 250. But these decisions [318] can not be held applicable to the case at bar, because the record before us sufficiently shows the grounds upon which the adjournment, in this instance, was ordered. It follows, the adjourned term commencing February G, 18G0, was legally held, and the judgment is therefore operative, and binding on the parties. W. V. Burns, for the appellant. J. W. Gordon and J. A. Beal, for the appellee. Per Guriam. — The judgment is affirmed, with 5 per cent, damages and costs.