Swails v. Coverdill

Per Curiam. Action by Coverdill against Swails, to recover for services as attorney at law, in attending to a case upon indictment, in the Decatur Circuit Court, for an assault and battery, with intent to murder. Upon the issues, there was a verdict for the plaintiff. Motion for a new trial denied, and judgment, &c. The errors are thus assigned: 1. The term of the Court, at which the cause was tried, was not held at the time prescribed by law. 2. The Court erred in its refusal to continue the case. 3. Illegal testimony was allowed to be given over the defendant’s objection. 4. The verdict is unsustained by the evidence. The Circuit Court, for Decatur county, as required by law, begun its fall term tan Monday, October the 20th, 1862, and was allowed to continue in session two weeks, if business thereof required it; 1 G. & H. p. 282; but that Court adjourned before the expiration of the space of time so allowed, viz: on Monday, the 27th of October, and on that day the term of the Common Pleas, at which this ease was tried and determined, was commenced in the usual form, and adjourned until Thursday, the 30th of October. Upon these facts, it is argued, that the Common Pleas, having commenced and held its October term within the period of time allowed by law for the holding of the Circuit Court, was illegally holden. We think otherwise. The Common Pleas was begun on the day fixed for its commencement by the statute. 1 R. S. G. & H. p. 279, sec. 11. It is true, an act, approved March the 1st, 1859, authorized the Common Pleas, when the Circuit Court was in session at the time the former should have been held, to hold its term on Monday succeeding the time of the Circuit Court; but that act was repealed by a statute passed March the 5th, 1859; Church v. Stadler, 16 Ind. 463; which repealing statute is still [273] in force. 1 G. & H. p. 281, sec. 23. There seems to- be no reason why the term of the Common Pleas, commenced October the 27th, 1862, should not be deemed regular and legal. Samuel Bryan, for the appellant. Hord & Ewing, for the appellee. An affidavit, to delay the trial for a day, on account of the absence-of the defendant, is set forth in the transcript; but .no motion, founded on the affidavit, appears to have been made; nor does it appear that any action of the Court was had in respect to the affidavit. Hence, there is nothing in the second assigned error. And the third is equally unavailing, because, though certain testimony was admitted over the defendant’s objection, the ground of objection was not stated to the Court. Nor can we, under the fourth assignment, adjudge whether the evidence is or not sufficient to sustain the verdict, because the record contains no sufficient averment, as required by rule 30 of this Court, “that this was all the evidence given in the cause.” The judgment is affirmed, with costs, and 5 per cent. damages.