Myers v. Lawyer

Best, C. — There are no pleadings in this cause. It was submitted and determined as an agreed case, under section 553 of the R. S. 1881. This section authorizes parties “to submit any matter of controversy between them to any court that would otherwise have jurisdiction of such cause, upon an agreed statement of facts to be made .out and signed by the parties, but it must appear by affidavit that the controversy is real and the proceedings in good faith, to determine the rights of the parties.” This section authorizes the determination of such controversy upon an agreed statement supported by the requisite affidavit, without pleadings. The record in this case contains the statement, but no affidavit accompanies the statement. This was necessary, as in the absence of an affidavit the record presents no question for decision by this court. This has heretofore been decided. Sharpe v. Sharpe, 27 Ind. 507; Manchester v. Dodge, 57 Ind. 584; Godfrey v. Wilson, 70 Ind. 50. The clerk in this cause prefaced a copy of the agreed statement of facts with the recital that one of the attorneys had filed the requisite affidavit, but the affidavit itself is not in the [238] record, and its existence can not thus be shown. The affidavit is an essential paper in the cause, and it is just as necessary to procure a transcript of it in order to present any question to this court, upon an agreed case, as to procure a transcript of the agreed statement of facts. Without an affidavit the court in such cases has no jurisdiction, and it is therefore essentially necessary that the record shall contain the affidavit as well as the agreed statement of facts. In this condition of the record, no question is presented, and, therefore, the judgment can not be disturbed. Filed Dec. 13, 1884. Petition for a rehearing overruled Feb. 14, 1885. Pee Cueiam. — It is therefore ordered, upon the foregoing opinion, that the judgment be and it is hereby affirmed, at the appellants’ costs.