McCormick v. Hyatt.

PRACTICE.-Trial Without Issue.-Supreme Court.-The fact that there was a trial without an issue cannot be taken advantage of in the Supreme Court without having been noticed below.

APPEAL from the Daviess Circuit Court.

PETTIT, C. J.-Appellee, a married woman, brought suit against appellant, as sheriff, for the value of her separate personal property, levied upon and sold by virtue of two executions against her husband and another.

The giving of the seventh instruction is assigned for error. That instruction is, that, to make a sale void for fraud as against the creditors of the vendor, the vendee must have had notice of the intended fraud, if his purchase was in good faith and for a valuable consideration.

There was no error in giving this instruction. Palmer v. Henderson, 20 Ind. 297; Bunnel v. Witherow, 29 Ind. 123. The rulings on this question are so uniform that it is unnecessary to make further citations.

The evidence is not in the record, and we cannot say whether the court erred or not in refusing a new trial on it. We must presume that the evidence justified giving all the instructions, the finding of the the jury, refusal of a new trial, and the final judgment of the court.

It is objected that the judge who tried the cause had no jurisdiction of the subject-matter of the case or of the parties thereto. A change of venue was taken from the regular judge, and another judge called to try the case, who appeared, took his seat, made some orders, and by consent of the parties continued the cause till the next regular term of the court. At the next term, the appointed judge did not appear, and the regular judge set down the case for trial on a subsequent day of that term, before another judge, who took a seat on the bench, and tried the cause, without any objection from either party. There was no error in this, the latter judge having full jurisdiction of both the subject-matter and of the parties.

It is objected that neither the finding of the jury nor the judgment of the court says anything as to the husband

McCormick v. Hyatt.

of the appellee, he (as is alleged) being a party to the suit. It is a sufficient answer to this to say, that the husband was not a party to the suit. Both paragraphs of the complaint say, that Susan G. Hyatt complains of the defendant for taking her individual, or separate property and selling it, &c. She alone complains, and she might have brought and maintained this suit without naming her husband. 2 G. & H. 41, sec. 8. It is true that at the very close of the complaint she says, that she is a married woman, and therefore she joins her husband as a party plaintiff. This does not make him a plaintiff. Had he been such, he must have joined her in her complaint and statement of her cause; nor would the leaving out his name and all reference to him in the finding and judgment have been an error if he had been properly made a party, as the suit was for injury to her separate rights of property.

It is assigned for error that there was a trial without an issue. The record says that the "issues were closed;" but if they were not, that cannot be taken advantage of here without having been noticed below; nor can we see that in this or any other proceeding in this cause the substantial rights of the appellant were erroneously affected. 2 G. & H. 122, sec. 101.

The judgment is affirmed, with five per cent. damages and costs.

J. W. Burton and W. R. Gardiner, for appellant.
N. F. Malott and T. R. Cobb, for appellee.

ADDRESS AND RESOLUTIONS

RELATIVE TO THE DEATH OF

HON. JEREMIAH SULLIVAN.

On the thirty-first day of the November term, 1870, being the 3d day of January, 1871, the following proceedings were had:

Hon. JOSEPH E. McDONALD addressed the court and said:

MAY IT PLEASE THE COURT:-I have been deputed by my brothers of the bar to make formal announcement of a sad event, by the news of which you have already been pained.

Hon. Jeremiah Sullivan, who was one of the judges of this court from the year 1835 to the year 1846, died suddenly at his home, in Madison, Indiana, on the 6th day of December, 1870.

It is the sentiment of my brothers of the bar, that the death of one to whom the jurisprudence of the State owes so much should be noticed in fitting terms upon the records of the high court to which his labors in former years contributed so much of character and respect.

As a judge, he was learned and inflexibly just, and an ornament to the bench. As a practicing lawyer, he was able and honorable, and an ornament to the profession. As a sincere Christian, he was an ornament to the church. As a man of exalted personal character, he was an ornament to society.

I respectfully move, your Honors, that the following resolutions of the bar be ordered spread upon the records of the court.

Mr. McDONALD then read as follows:

At a meeting of members of the Bar of the Supreme Court of Indiana, held at the Supreme Court room, on the 2d day of January, 1871, convened because of the recent death of Jeremiah Sullivan, a former judge of the court, the following resolutions were adopted:

Resolved, That it is fitting that some suitable expression of regard for the memory of Judge Sullivan should be preserved among the records of the high court over which he once presided.

Resolved, That, in the sense of the legal profession of this State, the name of Jeremiah Sullivan should be prominently inscribed in the list of those learned and able judges to whom Indiana will ever remain indebted for their services in laying the firm foundation of its jurisprudence.

Resolved, That we will cherish the memory of Judge Sullivan as that of a learned and upright judge, a devoted Christian, and a man of unsullied purity and integrity of character.

Hon. ROBERT C. GREGORY, on behalf of the court, responded as follows:

GENTLEMEN OF THE BAR:-In responding for the court to the motion just submitted, I can say that it affords me melancholy pleasure to endorse every word that has just been uttered.

My acquaintance with Judge Sullivan commenced at the May term of this court in the year 1839. I have met him on the bench, in private circles, and as a Christian brother. As a judge he was pre-eminent for his purity and sterling integrity. In this respect he was above criticism. He was a man of sound judgment. His opinions are marked for clearness in statement. Whilst he, like every good magistrate, bowed to the majesty of the law, he was ever anxious to get at the justice of the case. As an old citizen of the State, he will ever be remembered with pride and satisfaction.

He was, in the best sense of that expression, "a follower of Christ." His heart was in the right place. He was open handed in his charities, forbearing and kind in his intercourse with his fellow man. His family has the warmest sympathies of every member of this court.

We direct that the resolutions just offered be spread upon the records of this court, and that a certified copy be furnished to the family of the deceased.

INDEX.

A. in full satisfaction, upon the con- ALTERATION OF WRITTEN IN-