« AnteriorContinuar »
only, which shall be assigned on or before the first day of the term at which the cause stands for trial ; and the appellee shall file his answer thereto. (568.)
1. An assignment of errors must be specific and definite in its terms.- Ruffing v. Tilton, 12 Ind. 259; Hamrick v. Gravel Road, 41 id. 170.
2. Granting or refusing a new trial may be assigned for error.- Leppar v. Enderton, 9 Ind. 353; Hunt v. Beeson, 18 id. 380.
3. A judgment may be wholly or partly reversed.- Rice v. Rice, 6 Ind. 100; Bougher v. Scoby, 16 id. 151.
4. Such reversal may be as to all or some of different parties. Hopkins v. Organ, 15 Ind. 188.
5. Errors assigned must be upon matters of law only: questions of fact can not be re-tried above.--- New Albany, etc., R. R. Co. v. Stallcup, 62 Ind. 345.
6. The assignment of errors constitutes the appellant's complaint above, and noth. ing can be considered which is not fairly presented thereby.-- Hutts v. Hutis, 62 Ind. 214.
656. Questions of fact, how tried. 661. All questions of fact to be determined in the Supreme Court shall be tried according to rules to be adopted by the Court. (582.),
657. Dismissal, effect of - New appeal. 660. No appeal shall be dismissed for any informality or defect in the transcript or appeal-bond, if the appellant shall correct the informality or defect within a reasonable time. When an appeal has been dismissed for want of prosecution, the Court may reinstate it at the same or the next term, good cause being shown. When any appeal has been dismissed, another appeal may be taken. (581.)
658. Defect in form, etc., no ground for reversal. 659. No judgment shall be stayed or reversed, in whole or in part, by the Supreme Court, for any defect in form, variance, or imperfections contained in the record, pleadings, process, entries, returns, or other proceedings therein, which by law might be amended by the Court below, but such defects shall be deemed to be amended in the Supreme Court; nor shall any judg. ment be stayed or reversed, in whole or in part, where it shall appear to the Court that the merits of the cause have been fairly tried and determined in the Court below. (580.)
1. A judgment in proceedings in habeas corpus is final, and an appeal will lie there. from.-'State v. Banks, 25 Ind. 495; Speer v. Davis, 38 id. 271; Henson v. Walts, 40 id. 170.
2. Duplicity or misjoinder will not reverse a judgment.--Sherman v. Hogland, 54 Ind. 578.
3. When the merits of a cause have been fairly tried and determined below, the judgment will not be reversed for any defects in form.--Gallagher v. Himelberger, 57 Ind. 63; Campbell 7. Nebeker, 58 id. 446; Layman v. Shultz, 60 id. 541.
4. This section has no application to criminal cases.- Rollin v. State, 62 Ind. 46.
5. When the record in the case below does not affirmatively show that the decisions of the trial-Court are wrong, their correctness will be presumed. - Hammon v. Sexton, 69 Ind. 37; Child v. Swain, id. 230; Dill v. O'Ferrell, id. 500.
659. One Judge interested: others divided - Proceedings. 654. Whenever, on the hearing of an appeal, one of the Judges of the Supreme Court has been of counsel in the cause, or is otherwise incompetent to participate in the decision, and the remaining Judges are equally divided, the cause shall be continued to the next term; and if, then, the Judges shall be equally divided, the judgment shall be affirmed without costs, and in such case, each Judge shall give his written opinion of each point in the case arising upon the record, which shall be reported among the cases decided by the Supreme Court. (575.).
660. Reversal — Remanding for new trial - Instructions. 649. When the judgment is reversed, in whole or in part, the Supreme Court shall remand the cause to the Court below, with instructions for a new trial, when the justice of the case requires it, but, if no new trial is required, with particular instructions relative to the judgment to be rendered and all modifications thereof. And whenever any cause is reversed in the Supreme Court, in whole or in part, on appeal, and sent back for such further proceedings as may require a trial, if the opinion and decision of the Supreme Court in such cause shall have been deposited in the office of the Clerk of the inferior Court ten days or more before the first day of any term of such Court, such cause shall stand for trial at such term ; otherwise it shall be continued until the next term of such Court. (570.)
661. Judgment of Supreme Court-Damages. 648. The Supreme Court may reverse or affirm the judgment below, in whole or in part, and remand the cause to the Court below, but the Court shall not reverse the proceedings any further than to include the first error. If the Court affirm the judgment, damages may be assessed in favor of the appellee, not exceeding ten per cent upon the judgment in money judgments, and in any other cases in the discretion of the Court; and the Court shall remand such cause for execution. (569.)
662. Notice to Clerk below - Petition for rehearing. 650. When any cause is determined in the Supreme Court, the Clerk shall forthwith notify the Clerk of the Court below that it is determined, and whether reversed or affirmed, in whole or in part, or dismissed. At any time within sixty days after such determination, either party may file a petition for a rehearing; if not so filed, the decision and instructions of the Supreme Court shall be certified to the Court below, unless otherwise ordered by the Court. (571.)
663. Death, no effect after submission. 651. If the death of any or all the parties occur after the submission of a cause, judgment shall be rendered as at the term at which the submission was made, without any. change of parties. (572.)
664. Costs. 652. When the judgment is affirmed in whole, the appellee shall recover costs; and when the judgment is reversed in whole, the appellant shall recover costs in the Supreme Court and the Court below, to the time of the first error for which the judgment is reversed, which shall be pointed out in the opinion of the Supreme Court. In all other cases, costs shall be awarded as the Court may deem right, following, as nearly as possible, the general regulation for awarding costs. (573.) 1. Damages are not given on the dismissal of appeals.- Hart v. Hart, 11 Ind. 384. 2. Damages are not given on costs.- Patterson v. Brown, 1 Ind. 567.
3. A reversal carries costs in favor of the prevailing party, back to the error below upon which it is based.-- Doyle 2. Kiser, 8 Ind. 396.
4. Appeal lies from an order to pay money into Court in proceedings supplement. ary.- McKnight v. Knisely, 25 Ind. 336.
5. An appeal does not lie in partition until after the return and confirmation of the report.- Kern v. McGinniss, 41 Ind. 398; McClure v. Taylor, 38 id. 427.
6. An appeal will not lie from a probate order to sell lands.- Staley v. Dorset, 11 Ind. 367; Simpson v. Pearson, 31 id. 1.
665. Fee for transcript, etc. 653. The fee paid for procuring the
transcript, the costs of serving the notice of appeal, and the printer's fee for publication, are a part of the costs of the Supreme Court. (574.)
666. Execution from Supreme Court - Return. 658. Executions issued from the Supreme Court shall be the same as those of other of record, and shall be returnable as in other cases. (579.)
667, Money judgment — Execution when. 634. In all cases appealed to the Supreme Court, where the judgment below has been for the recovery of money, and the same shall be fully and unconditionally affirmed in the Supreme Court; the Clerk of the Court below shall be authorized to issue execution on said judgment as soon as the certified copy of the opinion and judgment of the Supreme Court, so affirming said judgment, shall be filed in his office.
668. Order to inferior Court for transcript and papers. 664. Any appellate Court shall have full power to compel any inferior Court, board, or officer exercising judicial functions, or other person, to certify to such Court a full and complete transcript of the records and proceedings of any such tribunal, board, officer, or person, and the production of any paper, whenever it shall be necessary for the proper determination of any cause or proceeding pending before the appellate Court. The breach of any order may be punished as a contempt. (585.)
1. Special findings, without request of one of the parties, must be considered on appeal as general findings.- Grover, etc., S. M. Co. v. Barnes, 49 Ind. 136.
2. A rehearing will not be granted, to allow a certiorari.-- Merrifield v. Weston, 68
3. A brief should refer to that part of the record relied upon for error.- Sanders v. Scott, 68 Ind. 130.
4. Statements of the Clerk not in the course of judicial proceedings, though copied into the transcript, are no part of the record. - Mull v. McKnight, 67 Ind. 535.
5. It will be presumed, the contrary not appearing, that instructions given were applicable to the evidence.- Higbee v. Moore, 66 Ind. 263; Wiles v. Lambert, id. 494.
6. It was held that neither the evidence nor instructions given will be considered on appeal, unless the record contains all the evidence.- Abrams v. Smith, 8 Blackf. 95; Murray v. Fry, 6 Ind. 371; Ruffing v. Tilton, 12 id. 259; Newton v. Newton. id. 527: State v. Frazer, 28 id. 196; Columbus, etc., R. R. Co. v. Powell, 40 id. 37 ; Mille v. Voss, id. 307; Keating 7. State, 44 id. 449; Aurora, etc., Tp. Co. v. Johnson, 46 id. 315; May v. Pavey, 63 id. 4.
669. Reversal - Effect upon title. 607. The reversal of any judgment by virtue of which any real estate has been sold or transferred, or the title thereto affirmed, shall not avoid the sale, transfer, or title, if the person to be affected thereby shall be, or claim under, a purchaser in good faith, and not a party to the record or attorney of any party. (533.)
1. The reversal of a judgment does not avoid a sale under it to a purchaser in good faith, or to the grantee of such purchaser .--Smith v. Anthony, 16 Ind. 267.
2. The effect of a judgment in evidence is as conclusive as if pleaded in estoppel against the parties to it.- Gavin 2. Graydon, 41 Ind. 559; McCaffrey v. Corrigan, 49 id. 175
3. A receipt entered by a judgment-plaintiff or his assignee is not conclusive of payment, even as to a subsequent purchaser in good faith without notice.- Lapping v. Duffy, 65 Ind. 229.
670. Restitution impossible - Remedy of defendant. 608. In every case of a sale, transfer, or confirmation of real estate upon execution or by judgment, where the defendant can not have restitution of his estate, he shall be entitled to recover of the judgment-plaintiff the full value of the estate with interest, when the judgment-plaintiff has purchased the estate, or had the same confirmed or transferred to him; and when the land has been sold by the Sheriff to any other person, he may recover the proceeds of the sale, with interest, deducting the amount applied to the costs of the judgment-defendant. (534.)
671. Restitution. 609. In every other case of a reversal of any judg. ment, by virtue of which any real estate has been sold or transferred, or the title confirmed, the judgment-defendant shall have restitution thereof as follows: (535.)
672. Notice of motion for restitution. 610. He may notify the purchaser or his tenant, or other person in possession, that at the next term he will move the Court which rendered the judgment to restore to him the possession of the premises. (536.)
673. Hearing and judgment. 611. Upon proof that the notice has been served ten days, the Court may proceed to hear and determine the issues made by the parties, and render judgment accordingly, or the judg: ment-defendant may recover his real estate by the ordinary action. (537.)
ARTICLE 26 - EXECUTION.
SEC. 674. Writs of,
720. Money may be levied on. 675. After ten years – Upon leave.
721. Bills, notes, etc. 676. Three kinds of.
722. Goods pledged, etc., subject to lien 677. Execution-docket - Contents.
723. Shares of stock — Sheriff's duties and power 673. Precipe for execution and fee-bill.
724. Debt or thing in action, when given up. 679. Judgments, how enforced.
725. Assignment thereof by Sheriff - Effect. 686. No execution against body or property, 726. Pleading and proof in action thereon. when.
727. First levy, on property selected by debtor 631. To whom issued,
Proviso. 682. Requisites of.
728. When none designated, levy general. 683. Tine of return.
729. When insufficient, levy, general. When may issue on Sunday.
130. Personalty first sold – Exception - Debtor's Indorsement of Clerk on such writ.
residence. 686. Lien on chattels-When first levy preferred. 731 Further levies and sales. 687. Sheriff's successor to execute writ, when. 732. Sale for two-thirds appraised value-Excep 683. Alias execution.
tion. 639. To another county - Lien from levy. 733. Sheriff to ascertain cash value. 690. Stay of — Time.
734. Appraisers - Selection - Duties. 691. Bail, how taken - Its effect.
735. Vacancy 692. Clerk to notify Sheriff — Return.
736. Liens and incumbrances, list of. 693. Clerk's indorsement on repleviable judg. 737. Schedule and valuation, ment.
738. Oath of appraisers. 694. Stay for residue.
739. Purchaser's privilege as to liens - Proviso. 695. Recognizance where copied.
740. Duty of Sheriff as to unsold property 696. Property levied on to be relinquished. 741. Lien of levy to continue — Limit -- New writ. 697. Bail – Effect of judgment coufessed.
742. Re-offer – Costs - Re-valuation. 698. Joint execution.
Fraud - Sale without appraisement. 699. When stay not allowed - Return limited. 744. Delivery-bond. 700. Sureties may prevent stay - Exception. 745. Appraisement, when pre-requisite. 701. When bail may have execution.
746. Non-delivery - Duty of Sheriff, 702. Entry of other bail - Its effect.
747. Return of forfeiture. 703. Exemption, six hundred dollars.
748. Action on bond - Damages. 704. Kind of property exempt.
749. Execution without stay - Return. 705. Selection of appraisers.
750. Notice of sale of personalty. 206. Schedule and appraisement.
751. Personalty, how sold. 707 Return of officer - Re-appraisement - Costs. 752. Real estate liable to judgment, etc. 703. Debtor to pav appraiser's fee.
53. Rents and profits first offered. 709. Duty of Officer when personalty only is 754. How valued. claimed.
755 Manner of sale - Lease by Sheriff. 710. Duty when claim includes personalty and 756. Real estate, how sold. realty.
756a. Sheriff's sales --- Legalizing. 711. Duty when claim is for realty only.
757. Notice of sale of realty. 212. Real property, how divided.
758. Damages against Sheriff for breach of duty 713.
Debtor must make and deliver a schedule. 759. Purchase by Sheriff void. 214. Verified schedule required.
760. Bidder not paying – Liability, 715. Wife may act in husband's absence.
961. Re-sale — Liability of first bidder. 716. When husband's mortgage of realty invalid. 562. Excess to debtor. 217. No exemptions against mechanics' liens. 763. Deed of Sheriff. 918. To what debts Act does not apply.
764. Deed to heirs or devisees. 919. Levy and offer to sell.
365. Purchaser subrogated, when.
792. Writ served by arrest and commitmeak. 767. Owner entitled to possession for one year. 793. Finding must designate the property. goś. Manner of redemption by owner-"Lis pene | 794. Notice to debtor. dens" entry.
795. Hearing, when had. 709. Undivided interest, how redeemed - Lien. 796. Hearing in absence of debtor. 770. Redemption by owner vacates.sale-Re-sale, 797. Issue on trial. when not allowed.
798. Issue against debtor - Execution. 771, Owner failing, judgment-creditor may re- 799. If property surrendered, no execution. deem
800. On failure to surrender, execution issues. 772. Manner of redemption by judgment-creditor- 801. Writ served by arrest and commitment. Successive redemptions.
802. Affidavit for arrest pending proceedings. 773. Venditioni exponas by last redemptioner - 803. Recognizance. Proceedings on sale.
804. Its form, effect, and return. 774. Manner of redemption by lien-holder whose 805. Female, etc., not liable. lien is recorded.
806. Debtor, how discharged, 775- All redemption entries to be indexed by 807. Oath, how taken. Clerk.
803. Time and place of oath - Notice to creditor. 776. Pay of Sheriff and other officers.
809. Creditor may examine prisoner, 777. Purchaser may recover for waste and injury 810, Discharge. to premises.
811. Disposition of property. 778. Act not applicable to former sales – Exist- 812. Return of Sheriff. ing liens
813. Effect of death of prisoner. 779. Receipt of Sheriff.
814. Proceedings upon escape. 780. Property of principal to be first exhausted , 815. Judgment-debtor, when required to answer 381. Return by mail - Money excepted.
after return, 782. Sheriff to pay at once.
816. Judgment-debtor, when required to apply 783. Neglect to lesy - Liability of Sheriff,
property after execution. 784. Neglect to return - Liability of Sheriff. 817. Order of arrest and bail, when had, 585. Neglect to pay over – Liability of Sherifl. 818. Bond, when required. 186. Further liability of Sheriff,
819. Other persons required to answer, after issue 987. Proceedings against delinquent Sheriff.
and return. 938. Return or execution.
Witnesses and examination. 289. When plaintiff shall give refunding bond, 821. Orders of Court as to property. 790. Effect of death of defendant.
822. Costs - Proceedings summary.
674. Writs of. 479. Writs of execution, as now used for the enforcement of judgments, are modified in conformity to this Act; and any party in whose favor judgment has been heretofore or shall hereafter be rendered may, at any time within ten years after the entry of judgment, proceed to enforce the same as provided in this Act. (405.)
1. An execution upon a void judgment is a nullity; otherwise, upon a voidable judgment.— Dawson v. Wells, 3 Índ. 398 ; Doe v. Harter, 2 id. 252.
2. The motion for leave to issue execution need not set out a copy of the judgment. -Verden v. Coleman, 23 Ind, 49.
3. The lien of an execution is not divested by an assignment for the benefit of creditors.- Marsh v. Vawter, 71 Ind. 22.
4. An ex-Sheriff may, under sanction of the Court, amend his return of an execu. tion.-Dwiggins v. Cook, 71 Ind. 579.
5. Irregularity in the issuance of an execution can only be objected to by the judg. ment-defendant, and by him only in a direct proceeding.-- Jones v. Carnahan, 63
6. Execution may issue as soon as the entry of judgment is signed.-- Willson v. Binford, 54 Ind. 569.
675. After ten years — Upon leave.' 480. After the lapse of ten years from the entry of judgment or issuing of an execution, an execution can be issued only on leave of Court, upon motion, after ten days' personal notice to the adverse party, unless he be absent or non-resident or can not be found, when service of notice may be made by publication, as in an original action, or in such manner as the Court shall direct. Such leave shall not be given unless it be established by the oath of the party, or other satisfactory proof, that the judgment or some part thereof remains unsatisfied and due. (406.)
1. Execution may issue upon an existing judgment against a defendant constructe, ively summoned. Gibson v. Green, 22 Ind. 422.,