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(146 N.E.) lutely necessary," and spent no money for , and results declared according to the law anything not "absolutely necessary,” cannot regulating general elections," except in the overthrow the finding and judgment on ap matter of providing election judges and peal. No facts were testified to in support clerks. That being so, an appeal under the of the conclusions thus asserted. And, even general statute might be taken from the deif appellant had testified to each item of his termination by the board of commissioners, expenditures, this court coud not know that upon canvassing the vote, of the judicial the trial court gave credit to his testimony. questions whether or not the votes counted Neither may this court set aside a judgment, by the returning boards were legal and were on appeal, upon the weight of conflicting evi. correctly counted and returned, and whether dence, where there is evidence which, if it or not 60 per cent. of the legal votes cast stood alone, would justify its rendition. and lawfully entitled to be counted were in The judgment is affirmed.

favor of such relocation. Galvin v. Logan, 182 Ind, 647, 649, 106 N. E. 871.

The petition for a rehearing is overruled.

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GANNON, County Auditor, v. STATE ex rel.
BRAHAM. (No. 24618.)

HUNT V. STATE. (No, 24361.)
(Supreme Court of Indiana. Jan. 29, 1925.) (Supreme Court of Indiana. Jan, 27, 1925.)
I. Counties Own 35(1)–Appeal from action of 1. Statutes em 47—Statute not nullified for in-
board of commissioners in ordering or refus. definite language where intent ascertainable.
Ing to order election not proper remedy.

Where legislative intent can be ascertained, Appeal from action of board of commis- enactment will not be annulled because lansioners in ordering or refusing to order elec-guage is indefinite as to some particular. tion for relocation of county seat, under Acts

2. Statutes nos 1 84-Enactment construed so as 1913, c. 335, held not proper remedy.

to effectuate intent, if possible, and remedy 2. Counties Em 35(1)-Appeal from determina- evil aimed at. tion of board of commissioners as to validity

Enactment will be construed so as to effecof election held proper remedy.

tuate legislative intent and remedy evil aimed Appeal from determination of board of at, if possible. commissioners on judical questions as to valid

13—Statute prohibiting counting and number of votes of county seat 3. Criminal law election, ordered by it under Acts 1913, c. 335,

heavy hauling on gravel roads in wet weathheld proper remedy, since section 6 provides

er held not void for uncertainty. that election, if ordered, shall be conducted

Burns' Ann. St. 1914, § 2313 (Acts 1907, and regulated according to general laws of c. 234, § 1), prohibiting heavy hauling on gravel elections.

roads in wet weather, being capable of intelli

gible construction, and conveying adequate deAppeal from Circuit Court, Jennings Coun- scription of evil aimed at, held not void for inty; John R. Carney, Judge.

definiteness or uncertainty. On motion for rehearing. Motion over

4. Indictment and information om 110(47)ruled.

Affidavit charging offense in language of state For former opinion, see 145 N. E. 283.

ute states publio offense.

Affidavit charging violation of Burns' Ann. EWBANK, J. [1] The act for the reloca- St. 1914, § 2313 (Acts 1907, c. 234, § 1), protion of the county seat and seat of Justice of hibiting hauling on gravel roads in wet weath

er, being in language of statute, states public Jennings county (chapter 335, Acts 1913, p. offense. 906) provides in the first section that upon presentation of a proper petition, signed by

Appeal from Circuit Court, Clay County; the required number of voters and freehold - John M. Rawley, Judge. ers, the board of commissioners shall order Noah Hunt was convicted of heavy hauling an election to be held. Obedience to this upon gravel road in wet weather, and he approvision would not involve judicial action, peals. Affirmed. and under the authorities an appeal would

Bernard C. Craig, of Brazil, for appellant. not lie from such an order, but the remedy U. S. Lesh, Atty. Gen., and Connor D. Ross, for wrongful action of the commissioners in First Deputy Atty. Gen., for the State. ordering or refusing to order an election would be something else than an appeal, if

TRAVIS, C. J. Appellant was convicted o: there were any remedy.

Board, etc., v. the charge of heavy hauling upon a gravel Brown, 147 Ind. 476, 484, 46 N. E. 908.

road in wet weather. [2] But the act further provides, by sec

The affidavit which charged the offense, tion 6, that, if an election is ordered, "such omitting the formal parts, alleged that, "on election shall be conducted in all respects, the 20 day of February, 1923, at the county returns made, votes canvassed and certified, I of Clay and state of Indiana, one Noah Hunt,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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late of said county and state, did then and , weight over it; and reasoning therefrom,
there unlawfully haul over a certain gravel that for one to know whether or not the high-
road then and there situate known as the way was in condition to be injured by heavy
Bailey gravel road No. 2, a load of coal, the hauling by reason of wet weather, it would
combined weight of which load, motor truck, be necessary to violate the law by test.
and driver, was more than 3,800 pounds; that It may be admitted that the condition of
such gravel road was, by reason of wet the highway necessary to prohibit its use as
weather, then and there in a condition to be expressed by the statute might have been
cut up and injured by heavy hauling, con expressed in clearer and more definite lan-
trary, etc.”; which offense as charged was in guage, which is to state that it is not as
violation of that part of the amended act definite as it might have been expressed, and
concerning public offenses, to wit, section therefore that the statute is indefinite.
419:

[1] A court cannot nullify the enactment of
"It shall be unlawful for any person to haul the Legislature because the language used is
any
* gravel road (the

term indefinite in some particular, unless 'the pur'gravel road' to include any road graded and pose or intenť of the Legislature cannot be graveled with not less than one yard of gravel ascertained. The intent of the Legislature is to 8 feet in width and 9 feet in length of such the essence of the law, and the function of road), at any time when the road

the court in construing legislative enactments by reason of wet weather is in condition to be is to ascertain the legislative intent, and to cut up and injured by heavy hauling, *

enforce such intent when ascertained. 2 on any vehicle with tires five inches or over in width, the combined weight of which Lewis' Sutherland, Statutory Construction load, vehicle and driver, shall be more than (2d Ed.) § 363; Manhattan Co. v. Kalden3,800 pounds.

(Section 2313, Burns' berg, 165 N. Y. 1, 58 N. E. 790; Hochheimer, 1914; section 1, c. 234, Acts 1907.)

Criminal Law (2d Ed.) § 28; State ex rel.

Clark v. Haworth, 122 Ind. 462, 23 N. E. 946, Appellant moved to quash the affidavit for 7 L. R. A. 240; Randall v. Richmond, 107 the reason that the facts stated therein do N. C. 748, 12 S. E. 605, 11 L. R. A. 460; Pennnot constitute a public offense, in that the sylvania Co. v. State, 142 Ind. 428, 41 N. E. statute upon which the charge is predicated 937. is void for uncertainty, and that it fails to [2] The cardinal principle in construing a fix a standard sufficiently certain by which statute is to seek the intention of the legisto determine whether such use of the road is lative will; and a rule of law equally as or is not a crime.

well grounded is that the enactments of the The question for decision is based upon the Legislature must be effectuated if possible. proposition, as stated by appellant, that that The intention of the lawmaker is the law. portion of the statute which prohibits load The court will not extend the meaning of the of a certain weight to be hauled over a gravel statute by construction but such construcroad, when the same, on account of wet tion will be given that, when practically apweather, is in a condition to be cut up and plied, will aid in preventing the evil which injured by heavy hauling, does not fix such a the ascertained intent aimed to prohibit. 2 standard that a man may know before he Lewis' Sutherland, Statutory Construction does the act sought to be prohibited, that he (2d Ed.) 88 528, 530; Clark & Marshall, Law is thereby violating this law.

of Crimes 97; Parvin v. Wimberg, 130 Ird. The plain intent of the Legislature in en- 561, 30 N. E. 790, 15 L. R. A. 775, 30 Am. St. acting the statute, as shown by the language Rep. 254; Riggs v. Palmer, 115 N. Y. 506, 22 used, as it affects this case, was to prevent N. E. 188, 5 L. R. A. 340, 12 Am. St. Rep. injury to the highways by use in measured 819; In re Quirk, 257 Mo. 422, 165 S. W. degrees, when the condition of the highways, 1062, 51 L. R. A. (N. S.) 817; Edelstein v. because of being softened by reason of wet U. S., 149 F. 636, 79 C. C. A. 328, 9 L. R. A. weather, would not withstand the ordinary (N. S.) 236; U. S. v. Freeman, 3 How. 563,

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The plain and ordinary meaning of the 11 L. Ed. 724. statute conveys this intent.

[3, 4] The court is of the opinion that the It is urged that the statute is too indefinite statute is capable of intelligible construction to be enforced, in that no standard is made and interpretation by persons who possess by the law by which two persons might agree but ordinary comprehension; and that its that the roadway was so wet that a load of language conveys an adequate description of the weight named in the law would injure the evil intended to be prohibited. The affithe highway; and that by any interpreta- davit which charges the offense is in the lantion of the law itself, the only test to ascer- guage of the statute, and states a public of. tain the condition which prohibits the use of fense. The statute is not void because of inthe highway, is whether or not it is in fact definiteness or uncertainty. injured by hauling a load of the named Judgment afirmed.

use.

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(146 N.E.)

finding that appellant failed to make out HURST V. STATE, (No. 24524.) his defense of former jeopardy cannot be dis(Supreme Court of Indiana. Feb. 6, 1925.)

turbed on the weight of conflicting evidence.

No substantial rights of the appellant are
Criminal law w 1 158(1)-Finding against for- shown to have been violated by the ruling
mer jeopardy not disturbed on appeal on con- complained of.
flicting evidence.

The judgment is affirmed.
Finding that defendant had failed to make
out his defense of former jeopardy cannot, on
appeal, be disturbed on the weight of conflict-
ing evidence.

Appeal from Circuit Court, Putnam Coun-
ty; H. L, Fisher, Judge.

ANDERSON BANKING CO. OF ANDER

SON v. GUSTIN et al. (No. 12020.) Joe Hurst was convicted of selling intoxicating liquor, denied a new trial, and ap- (Appellate Court of Indiana. Jan. 29, 1925.) peals. Affirmed.

1. Mortgages Om 112-Each of mortgagees held James & Allee, of Greencastle, for appel

to own an undivided half interest in mortgage lant.

and in notes secured thereby. V. S. Lesh, Atty. Gen. (Cronk & Wilde, of

Where notes transferred by mortgagees to Indianapolis, of counsel), for the State. another and by him transferred to his wife

were made payable to mortgagees, and they EWBANK, J. Appellant was charged by were both mortgagees in mortgage securing affidavit with the offense of selling five gal- notes, each of them was owner of undivided lons of intoxicating liquor to Charles Turn- half of each of notes, and each had an undivided

half interest in mortgage. er, was convicted in the mayor's court, and on appeal to the circuit court was convicted 2. Mortgages On 236—Assignment of notes sethere. Overruling his motion for a new trial, cured by mortgage held to operate as an which specified as a reason that the finding equitable assignment pro tanto of mortgage. was contrary to law, is assigned as error. Where each of mortgagees was owner of

Turner and his wife both testified that undivided one-half of notes secured by mortappellant sold him the liquor, as charged, gage, and each had an undivided one-half inand delivered it, and that upon receiving it terest in mortgage, assignment by them of such Turner paid him $60 for it. The only ques- notes to another and by him to his wife opertion argued in the brief for appellant is ated as an equitable assignment pro tanto of

mortgage to such parties. whether or not be proved his defense of "former jeopardy," of which he had the 3. Mortgages On 249(3)—Mortgagee's release burden of proof. There was direct evidence of mortgage held to deprive assignee of mort. that he never had been tried before, but was gage notes of so much of her equitable inter. only tried once; and the only evidence tend

est in mortgage as secured undivided one. ing to show that there was a hearing of any

half of each of notes held by her. kind before the one at which the mayor ad

Where mortgagees' assignment of notes sejudged him guilty, from which he appealed cured by mortgage was not of record, release to the circuit court, was proof that a few of mortgage by one of mortgagees who was an

owner of an undivided one-half of each of such blank spaces in a printed form of entry on notes and who owned an undiveded one-half the docket of the mayor of Greencastle had interest in mortgage operated as a release of been filled, so as to recite that an affidavit so much of assignee's equitable interest in was filed against appellant on the day on mortgage as to innocent third parties as sewhich the affidavit now before the court was cured undivided one-half of each of notes held filed, that he pleaded not guilty, and that the by her. court found that if guilty at all he was guil. 4. Mortgages em 315(1)—Satisfaction of mortty of a felony, and ordered that he be bound

gage by husband held not to release interest over to appear in the circuit court of Put

of wife therein. nam county, from which this appeal was tak- Where husband and wife were each owners en, fixed his bond at $2,000, and took such a of an undivided one-half interest in a mortbond from him. The mayor testified that aft-gage, and wife did not release her interest er writing this he had “tried to strike it therein, satisfaction of mortgage by husband in out,” and lines had been drawn across it no way affected her interest. with ink, and the mayor had written and

5. Mortgages 244(2) Mortgage assignee signed at the bottom of the page the words

held not entitled to rely on representations "Above record void.” Appellant was exam- that mortgage assigned to it was a first ined as a witness in his own behalf, and tes- mortgage. tified to many things, but neither he nor

Assignee of a mortgage could not rely on anybody else testified that he ever was ar- representation of mortgagee that mortgage asraigned and tried at any other time than on signed to it was a first mortgage when public the date of the judgment appealed from. A record showed to contrary.

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6. Principal and agent lll(2)—Statement said, and that, unless an extension of time

not construed as authorizing mortgagee to would be granted, he would have to recondestroy mortgage notes which belonged to vey said property, and Surratt then suggestassignee and to take other notes in lieued to the said Schies that an extension of one thereof. That husband of assignee, to whom notes all of said notes, and told said Schies that

year be granted on the maturity dates of secured by mortgage had been transferred at time of delivering notes to mortgagee to have

some arrangement would have to be made. interest credited thereon and to extend time of Thereupon Schies turned said two notes over payment, told mortgagee to do best he could to him for the purpose of having the interwith mortgagor could not be construed as giv- est credited thereon, and the time of pay. ing mortgagee authority to surrender and de- ment on all of said notes extended, and told stroy notes and to take other notes in lieu him to do the best he could with Gustin. thereof, payable to himself, and secured by a Afterwards Surratt and Gustin made arjunior mortgage.

rangements between themselves by which Enloe, J., dissenting.

Gustin and wife conveyed the real estate

back to Surratt and wife, and they then conAppeal from Superior Court, Madison veyed same to Gustin, individually (before it County; Willis S. Ellis, Judge.

had been conveyed to Gustin and wife). Gus. Action by the Anderson Banking Company tin then executed two series of notes to of Anderson against Alonzo M. Gustin and Surratt, one series being for $4,000, and others. Judgment for defendants, and plain-numbered from 1 to 5, and the other series tiff appeals. Affirmed.

being for $2,000 and numbered 1A and 2A Diven, Diven & Campbell, of Anderson, for Each of these series of notes was secured appellant.

by a separate mortgage on the 35 acres of Bagot, Frée & Pence, of Anderson, for ap- land, but by agreement between Surratt pellees.

and Gustin the mortgage securing the $4.000

in notes was to be a first mortgage thereon. NICHOLS, J. Action by appellant to re

and the mortgage securing the $2,000 in cover on five promissory notes executed by notes a second mortgage thereon. Upon the appellee Alonzo M. Gustin to appellee Gari execution and delivery of the last two series W. Surratt, aggregating $4,000, and after- of notes and the mortgages securing same to wards assigned to appellant for a valuable Surratt he (Surratt) then surrendered to consideration and also to foreclose against Gustin all of the notes first executed by all appellees à mortgage on real estate ex. him and wife as fully paid, who thereupon ecuted to secure said notes, and to have destroyed the same, and Surratt entered satsaid mortgage declared a first lien on said isfaction of the mortgage securing said real estate. There was a special finding of notes. (We observe, however that this mortfacts substantially as follows:

gage was made to Surratt and his wife, and On August 6, 1919, appellees Surratt and that the wife did not join in the satisfacSurratt, husband and wife, were the owners tion thereof.) of 35 acres of land in Madison county; on The mortgage securing notes for $4,000 said date they listed the same for sale with was recorded at 9 o'clock a. m. November 3, John Schies, at a price of $6,000 net to them, 1921, and the mortgage securing the notes he to have all over that price for commis- for $2,000, which by agreement between Sursion.

ratt and Gustin was to be junior to the othSaid Schies procured a purchaser for said er, was recorded at 10 o'clock a. m. Novemreal estate for $8,000 in appellees Gustin, hus-ber 3, 1921. Neither the said John Schies band and wife, who paid in cash $2,000, nor the said Mary E. Schies ever at any time and executed their several notes for $6,000, authorized either the said Garl W. Surratt of which the Surratts retained $4,000 and or Mary F. Surratt to release of record the indorsed in blank two $1,000 notes and turn- original mortgage executed by the said Gus. ed the same over to said Schies as his com- tin and Gustin to secure the payment of the mission, who thereupon transferred them to two $1,000 notes which had been assigned to his wife, appellee Mary E. Schies, by de the said John Schies by Surratt and Surratt livery.

and which had been transferred and assigned Before the maturity of the first note ap- by delivery to the said Mary E. Schies by pellee Alonzo M. Gustin called on appellee the said John Schies. Garl W. Surratt and told him that he and Afterwards, and long before maturity, for his wife would not be able to meet any of a valuable consideration, and in due course the notes at maturity, and that some arrange of business, the appellant Anderson Bankment would have to be made to extend the ing Company purchased the notes numbered time of payment of all the notes, or they from 1 to 5 and took an assignment of the would have to throw up on the trade. There- mortgage securing same. At the time of purafter appellee Garl W. Surratt called Schies chasing said notes the said Surratt, payee to his office and told him what Gustin had therein, represented to appellant that the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(146 N.E.) same were secured by a first mortgage on [3-5] Thereafter the Surratts had no insaid real estate, and appellant's cashier terest in so much of the mortgage as by the examined the records in the recorder's of assignment of the notes had been equitably fice and found the last two mortgages record assigned to Mr. Schies and by him to his ed as above set out. At the time appellant wife, and, of course, no right to release it knew of the existence of said series of notes as to them. But, there being no assignwhich had been originally executed by the ment of record a release by them or either said Gustin and Gustin and a portion of of them of the mortgage, though wrongful, which had been assigned as collateral se- would operate as a release pro tanto of curity by Surratt and Surratt to said bank, the interest of Schies or his wife as to any and did not make any request for the sur one who had no knowledge of the equitable render of said original notes, but made trans- assignment. Mr. Surratt did release the action and purchased said notes upon the mortgage, and thereby Mrs. Schies lost so personal responsibility of appellee Garl W. much of her equitable interest in the mortSurratt. At the time of the purchase of gage as to innocent third parties as secured said notes by appellant it had no notice or the undivided one-half of each of the notes knowledge of any kind or character that held by her. This Mrs. Schies concedes. any of the original notes had been turned But Mrs. Surratt did not release her interover or assigned to said John Schies or Mary est, and the satisfaction of the mortgage by E. Schies, or had been in the possession of her husband in no way affected her interthem, or that they had ever had any inter- est. Howe v. White, 162 Ind. 74, 69 N. E. est whatever therein, or that they had ever 684. What motive she had, if any, in not so been out of the possession of appellees Sur- doing does not appear. It may have been ratt.

for the purpose of protecting Mrs. Schies There was no assignment of the original | as to her equitable interest therein. Appel. mortgage by the Surratts to John Schies or lant could not rely on the representation Mary E. Schies other than that which re- that the mortgage assigned to it was a first sulted from the assignment of the two notes mortgage when a public record showed to indorsed on blank and turned over to John the contrary. Adkin v. Adkins, 48 Ind. 12. Schies which were secured by the mortgage. Appellant says that, if Mrs. Surratt was No record of any kind was ever made of contending that she had a lien by virtue of such indorsement upon any record in the the original mortgage superior to the lien recorder's office of Madison county, nor was

of the appellant, there might be some merit any assignment of said mortgage ever re

in her contention, as, the record shows no corded in the latter office. On these findings release of said mortgage by her. the court stated a conclusion of law, with

We fail to see why Mrs. Surratt would other conclusions not herein challenged, that have a superior lien had she still retained Mrs. Schies holds a mortgage lien against the notes, and yet Mrs. Schies, to whom the real estate involved in the sum of $2,- the mortgage was thereby equitably assign271.32, one-half of which sum $1,135.66 is a

ed pro tanto, could not have the benefit senior and prior lien on said real estate to of the same superior lien so long as the mortappellant's mortgage lien. Judgment was gage was unreleased of record, and thereby rendered foreclosing appellant's mortgage appellant had full knowledge that the mortsubject to the lien of one-half of appellee

gage was outstanding. Mrs. Schies’ mortgage, to wit, for the sum of

[6] It appears by the special findings that $1,135.66 as stated in the conclusion, from Mrs. Schies delivered his wife's notes to which judgment this appeal.

Mr. Surratt for the purpose only of having [1, 2] It will be observed that the notes the interest credited thereon, and of havwhich had been transferred by the Surratts ing the time of payment extended. The fact to Mr. Schies and by him transferred to his that at the time he told Surratt to do the wife were made payable to the Surratts, best he could with Gustin must be construed and that they were both mortgagees in the to mean within the compass of the purpose mortgage securing these two notes. It fol. for which the notes were delivered. Certainlows then that each of Surratts was the ly it cannot be construed as giving authority owner of the undivided half of each of said to Surratt to surrender and destroy the notes, notes, and that they each had an undivided which belonged to Mrs. Schies, and to take in half interest in the mortgage. The assign- lieu thereof other notes payable to himself ment by the Surratts of these notes to Mr. and secured by a junior mortgage. RobinSchies and by him to his wife operated as

son v. Anderson, 106 Ind. 152, 6 N. E. 12. an equitable assignment pro tanto of the

The court did not err in its conclusions of mortgage to the respective parties to whom

law.
the notes
successively transferred.

The judgment is affirmed.
Hough v. Osborne, 7 Ind. 140; Parkhurts
V. Watertown Steam Engine Co., 107 Ind.
594-596, 8 N. E. 635.

ENLOE, J., dissents.

were

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