Kennedy v. Harris

58 S.W. 567, 3 Indian Terr. 487, 1900 Indian Terr. LEXIS 16

• Court: Court Of Appeals Of Indian Territory
• Decided: October 10, 1900
• Status: Published

Opinion

Thomas, J.

It is urged by counsel for appellants, in support of the first error assigned, that it was impossible for appellants to file an answer to appellee’s complaint, for the reason that they had no notice of the pendency of the suit, as required by section 5152, Mansf. Dig. (section 3357, Ind. T. Ann. St. 1899). Said section is as follows:

“Sec. 5152 (3357). A new trial shall not be granted on account of the smallness of the damages in an action for an injury to the person or reputation, nor in any other action where the damages shall be equal to the actual injury sustained. ’ ’

What this section of Mansfield’s Digest has to do with this case is beyond the comprehension of this court. It certainly does not throw the slightest glimmer of light upon the question under consideration.

service°oíSuit' Summons. Continuing, the brief states: “It was certainly beyond Robert Kennedy’s control to answer, and therefore the court should have set aside the default; and refers to 2 Thomp. Trials, § 2738. ‘ ‘And as Robert Kennedy is the owner of the property, and not his wife, the court should have set aside the default; for it is certainly not right that one person should suffer for the fault of another, neither do we think it the spirit of the law. ’ ’ The section of Thompson on Trials referred to, supra, is good law, but it does not sustain appellants’ contention. The transcript shows: “This cause coming on to be heard, and it appearing to the court that the defendants had been duly served with summons herein as required by law.” Section 4976, Mansf. Dig. (section 3181, Ind. T. Ann. St. 1899), provides: “The service shall be: First, by delivering to the defendant a copy of the summons; or, second, if he refuse to receive it, by offering a copy thereof to him; or, third, by leaving a copy of said summons at the usual place of abode of the defendant, with some person who is a member of his family over a§'e fifteen years.” The affidavits filed by appellants show that they were each of them served with summons, in strict conformity with the law; hence the claim in the first error assigned, that appellants were taken by surprise, and had no opportunity of answering the complaint, is shown to be a pure fabrication, and without foundation in fact.

As to the second error assigned, “Because'the appellee is not the real party in interest; the title does not vest in appellee until he can get quiet and peaceable possession, the transcript shows that, after the purchase of the premises at the sale upon the foreclosure of the mortgage by G. D. Sleeper and James A. Harris, Sleeper sold and conveyed his undivided interest in the premises to appellee. Hence the claim that appellee was not the real party in interest is contradicted by the evidence, and the authorities cited do not sustain appellants’ contention, since they do not apply to a case like this.

The third error assigned, that ‘ ‘the judgment was not sustained by the evidence, ” is not borne out by the record. The deeds or bills of sale offered in evidence show that appellee was the owner of the premises, and the court found ‘ ‘from the complaint, and the written evidence exhibited with the complaint, that he is the owner and entitled to the possession of the premises, ” and, no defense having been interposed, we are of the opinion that the evidence was sufficient to sustain the finding and judgment of the court.

Married woman liable on Joint Note, The fourth error assigned, “The court should have set aside the default as to Katie Kennedy because she is and was a married woman at the time the mortgage was executed, ” is, indeed, a strange doctrine. She was one of the signers of the note and joined in the execution and delivery of the mortgage given for the purchase price of the property, and it would be a strange law that would allow her to hold possession, or defeat a legal recovery of the unpaid-for property, for the reason that she is and was a married woman. The authorities cited do not even remotely sustain such a contention. This is noG a personal judgment, —which in some cases might be regarded as questionable,— but is a judgment for the recovery of the possession of property to which she had neither title nor right of possession.

Motion for new Trial. Time of filing. The motion for a new trial came too late. The judgment was rendered on the 17th day of November, 1898. The motion for a new trial was not filed until the 7th day of December, 1898. Section 5153, Mansf. Dig. (section 3358, Ind. T. Ann. St. 1899), provides:

“Sec. 5153 (3358). The application for a new trial must be made at the term the verdict or decision is rendered, and, except for the causes mentioned in subdivision 7 of section 5151, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented. ”

Subdivision 7, § 5151 (subdivision 7, § 3356), is as follows: “Seventh. Newly-discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.”

There is nothing in the record bringing this case within either of said provisions. Upon the whole record, the judgment seems to be a just one, and entirely justified by the law and the evidence, and, no error having been discovered, the judgment of the court below is affirmed.

Clayton, C. J., and Townsend and Gill, JJ. concur.