Cox v. Pruitt

Gregory, J. This case is in this court the second time, — 91 — 21 Ind. 15, and is a suit by the appellee against the appellant for the seduction of a daughter. Answer, general denial* The action was originally commenced in the Hendricks Circuit Court. On the application of the defendant the venue was changed to the Manon Circuit Court, where the cause was tried. Verdict and judgment for defendant. The case was appealed to this court, where the judgment was reversed. The opinion was certified back to the Marion Circuit Court, and filed by the clerk of that court with the papers of the cause. There was no motion made in that court to have the opinion entered on the records thereof, but the court treated the judgment as having been reversed, and proceeded with the cause. On the application of the plaintiff, the venue was changed from the judge of that court, on account of alleged prejudice, and a time in vacation was fixed for the trial, and Judge Claypool, of another circuit, was appointed to try the case. On the day set for trial the parties appeared, and by agreement the case was continued to a day fixed. At the time to which the case was adj ourned, the parties appeared, and upon motion and by agreement of the parties, and for good cause shown and admitted, it was ordered that the venue be changed to the county of Hendriclcs. At a regular term of the Hendricks Circuit Court the parties appeared, and by agreement the cause was set down for trial on the 25th of October, 1864, and the court appointed Judge Perkens, then one of the judges of this court, to hear the same. At the time set, Judge Perkins attended and called the case for trial. The defendant moved the court to dismiss, on the ground that Judge Perkins had no legal authority to try the cause. The motion was overruled. The defendant then moved the court to continue the case to the regular term of the Hendricks Circuit Court, on the ground that that court had no jurisdiction of the cause, the same having been once changed to Marion county, and never having been legally returned to Hendricks, as was claimed by the defendant. This motion was overruled. The defendant again — 92 — moved to dismiss the case, on the ground that the record of the cause showed that the same had been once tried, and a verdict and judgment rendered for the defendant, which judgment had never been appealed from, reversed or set aside, so far as the records of the Marion and Hendricks Circuit Courts showed, nor had any new trial been granted. This motion was also overruled. The defendant then moved for leave to file an additional answer, setting up a former trial of the cause, and a verdict and judgment for defendant, which it was alleged had never been reversed or set aside. This motion was made after the jurors had been placed in their box by the sheriff. The court refused to grant the leave. When the jury had been called into the box, at the request of the plaintiff, there being none of the regular panel of jurors in attendance, the defendant challenged the array, because none of .them were of the regular panel, but were impanneled from the bystanders. The court overruled the challenge. During the progress of the trial, the defendant offered witnesses to prove his general character for truth. The testimony was objected to, and ruled out, on the ground that his character had not been attacked. The defendant offered several witnesses to sustain his moral character, but the court confined the examination on this subject to three witnesses, the plaintiff having stated that he should offer no evidence impeaching that character. On a suggestion by the appellee of diminution, a certiorari was issued, and a transcript was returned to this court by the clerk of the Hendricks Circuit Court, in which are copied, at the proper place, the affidavit of the plaintiff for a change of venue from the Judge of the Marion Circuit Court, and the order made thereon, setting the case for trial in vacation, and appointing Judge Claypool to try the same. On the margin of the transcript there is a statement that “ this was filed and attached to the transcript from the Marion Circuit Court, on the 7th day of December, 1864, by plaintiff’s attorney.” It no otherwise appears that the affidavit for a change — 93 — of venue, and the order made tbereon, are not a part of tbe certified transcript of the proceedings of tbe Marion, filed in tbe Hendricks, Circuit Court. There was a trial by tbe jury impanneled, as stated in tbis opinion; verdict for tbe plaintiff; motion for a new trial overruled, and judgment. There is a motion made in tbis court to strike out tbe affidavit for a change of venue from tbe Judge of tbe Marion Circuit Court, and the order made tbereon, on tbe ground that they are not properly a part of tbe record. . * There are eleven errors assigned. It is claimed that tbe court below bad no jurisdiction to proceed in tbe cause until tbe opinion of tbe Supreme Court reversing tbe judgment was entered upon tbe order book of tbe Circuit Court, and an order made setting aside its proceedings, in accordance with tbe direction of tbis court. There is nothing in tbis objection. Tbe code provides that “tbe Supreme Court may reverse or affirm tbe judgment below, in whole or in part, and remand tbe cause to tbe court below; but tbe court shall not reverse tbe proceedings any further than to include tbe first error.”" 2 G-. & IT., § 569, p. 276. Tbe reversal by tbis court, ex vi termini, vacates tbe judgment of tbe court below, without any action of that court. On tbe filing of tbe certified opinion of tbis court in tbe clerk’s office of the Circuit Court, it .was the duty of that court to proceed with tbe cause from tbe point reached by tbe judgment of reversal. That court having done its duty, although in an informal manner, committed no error • in taking jurisdiction of tbe cause. It is urged tbat.tbe Hendricks Cbcuit Court erred in taking jurisdiction of tbe cause, no change of venue having been granted or ordered from tbe Marion Circuit Court by proper authority. Tbis objection has its foundation in tbe fact that at tbe time tbe Hendricks Circuit Court proceeded to final judgment, tbe affidavit of Pruitt for a change of venue, and tbe order made tbereon, were not in tbe certified tran-' script returned from the Marion to: tbe Hendricks Circuit ■ — 94 — Court. The latter court had jurisdiction of the subject matter, and the appearance and agreement of the defendant to set the cause for trial in vacation gave that court jurisdiction of the person of the defendant, and he cannot complain. We have treated the case as though the affidavit of Pruitt for a change of venue, and the order made thereon, were not a part of the record. The correct practice required the appellee to procure an order of the Hendricks Circuit Court directing the clerk of the Marion Circuit Court to certify a corrected transcript of the proceedings of the latter to the former court. This it seems was not done. We are not prepared, however, to say that the statement of the clerk on the margin of the transcript is the proper method to bring the facts to the attention of this court. The clerk in his return to the certiorari should have returned the facts, and ought not to have placed the papers furnished him by the plaintiff’s attorney in the transcript of the record, when they had not been on file in his office. It is claimed that the court erred in rejecting the evidence offered by the defendant, that he was a man of truth. This question was settled in the previous decision of this court in this case, and it is res adjudicata, and if erroneous could have been reached only by a petition for a rehearing, filed within the time limited by the rules of practice of this court. But, if an open question, how stands the matter. The plaintiff introduced his daughter to prove Aie seduction complained of; the defendant offered himself as a witness to contradict her, and then asks to back up his own character for truth by proving his general reputation. The statement of the facts is the best refutation of the appellant’s proposition. We cannot say that the court below abused the exercise of its discretion in limiting the defendant to three witnesses in the proof of moral character, in the face of the declaration of the plaintiff' that he did not intend to introduce any evidence to impeach that character. And, indeed, we do not see how the moral character of the defendant had anything to do with the case. The court below committed — 95 — no error in refusing leave to the defendant to file an additional answer. The certified opinion of this court was on file with the papers of the cause. - The court had the evidence before it that the' answer offered was a sham defense, and the mere refusal to allow the pleading to be filed was, to say the least, as mild treatment as the defendant was entitled to, under the well known rules relating tp sham pleading. 8. Blair and L. M. Campbell, for appellant. C. C. Nave, for appellee. The challenge to the array is answered by the act of March 5, 1859. 2 Q. & H.,. § 1, p. 32. The court below committed no error in overruling the motion for a new trial. The evidence is not of such a character as to warrant this court in setting aside the judgment and awarding a new trial. Eor the reasons stated in this opinion, the court below committed no error in refusing to arrest the judgment. The judgment'is affirmed, with costs.