Buckinghouse v. Gregg

19 Ind. 401

• Court: Indiana Supreme Court
• Decided: November 15, 1862
• Status: Published

Opinion

Per Curiam.

The Court takes judicial notice of a county. created by a public statute. But the Court does not take judicial notice of the time of the division of counties, and the erection of new ones, by county commissioners; under the general law. The time of the erection of a new county, by such process, where it becomes material, touching a question of jurisdiction, must be proved.

McDonald and Walker, and Milroy and Taiman, for the appellants.

The Supreme Court, in a case appealed, would, doubtless, take notice of the session of the Court, when held in such county, pursuant to law.

Where a suit was commenced for the foreclosure of a mortgage, in the proper county, such suit would not be defeated by the division of the county afterward; and the division of the county would not be complete, till a Court was so far organized in the new county, as to enable suits to be commenced in such county. See 2 Blackf. 391.

Where a note is made, and made payable in another State, and bears a higher rate of interest than is allowed, by law, in this, but suit is instituted upon it, for collection, in this State, it is not necessary to plead any law of such State, touching interest. The Court presumes the common law to be in force in such other State, of the United States, with, perhaps, an exception or two; that law established no rate of interest, and hence we presume the contract valid, according to existing law, when and where it was made.

When a mortgage is foreclosed for the last installment, a decree that the property be sold, as property is sold under execution, to make the money, is good; because the sheriff only sells so much as will make the money, where the property is divisable. Where there is no order or judgment for any deficiency that may remain unpaid, after the sale of the land mortgaged, there is no personal judgment.

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