20 IND 479 - Evans v. Galloway

How this case has been cited

Cited by 14 later decisions — most recently January 1957

1 federal appellate · 10 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

Per Curiam.

¶1The judgment in this case was rendered in October, 1853. The transcript was filed in the Supreme Court in September, 1856, and process issued to a resident defendant.

¶2A suit is held to be commenced in this State, when the process in it, for the defendant, is regularly delivered to the officer for service. Hancock v. Ritchie, 11 Ind. 48; id. 354. The appeal is not barred by the statute of limitations.

¶3It is claimed that the case is before us upon the evidence, and that the judgment is not supported by the evidence. This is the only point.

¶4If the transcript before us does contain all the evidence, it . shows that the judgment below is right. If it does not contain all the evidence, we must presume that the judgment is right. It does not purport to. contain all the evidence. It does not conform to the rule of this Court. See Branham v. Bradford, 17 Ind. 47.

¶5A point of pleading and practice must be noticed.

Walter March, for the appellants.

¶6To the assignment of errors the appellee answered:

¶71. In nullo est erratum.

¶82. That the appeal was not taken within three years, in other wox-ds, the statute of limitations.

¶9It is claimed that the answer of the statute of limitations waived the joinder in error, and that such waiver and plea of the statute operated to admit the errors assigned.

¶10The answer of no error was a demurrer. The answer of the statute was of matter of fact. .

¶11In the nisi prius Courts the answer of fact would be a waiver of a demui'rer to the pleading to which the answer of fact was addressed.

¶12But this rule cannot be applied to proceedings in the Su preme Court.

¶13The first pleading on tne part of the appellant in this Court is an assignment of errors in law. This assignment precedes any answer by the appellee. Yet, as the law allows the defence of the statute and' some other matters of fact, as well as a demurrer in law, to be answered, they must, almost necessarily, be answered simultaneously; at all events, they certainly may be. See the statute cited in 14 Iud. on p. 514. The case of Smith v. Conlan, 14 Ind. 513, so far as it conflicts with this opinion, is overruled.

¶14The judgment is affirmed, with costs.1

¶15(1) Petition for rehearing overruled, August 26, 1863.