Indiana Supreme Court, November term 1865
APPEAL from Noble Common Pleas.
Gregory, J. - This was a suit by Jeffries against the appellants for wrongfully, willfully and maliciously refusing, as election officers, to receive the ballot of plaintiff at the last presidential election. The action was begun in Whitley County and removed to Noble by change of venue. After an appearance in the latter court, and submitting to a rule to answer, and the publication of dispositions, the defendant moved to dismiss the case because the certified transcript Whitley County did not contain a copy of the complaint. The transcript contained nothing but the proceedings had in the open court in the Whitley Common Pleas - an appearance, rule to answer, motion for a change of venue, and the order directing the change.
The motion came too late, after the appellants had submitted to the jurisdiction, as they did by appearing and submitting to a rule to answer. Cox V. Pruitt, ante p. 90. Besides, the motion was not well taken at any rate. The statute requires merely "a transcript of the proceedings", and not a transcript of the whole record to be transmitted. 2 G. & H., sec, 208, p 155. By "proceedings", in that statute, we think meant merely the orders made in the cause by the court granting the change of venue. The language will admit of this construction, and to give it any other would be to require that to be done which would serve no useful purpose whatever, to either of the parties.
An issue was formed by a traverse of the complaint, and submitted to the court for trial, the defendant that the facts found be stated in writing and the conclusions of the law upon them, as provided in section 34 of the code. The finding is as follows:
That said plaintiff was, on the 8th of November, 1864, and for more than six months prior thereto had been a bona fida resident of Smith township, Whitley County, Indiana, and was born and raised in the United States, and is a citizen thereof; that the father of the plaintiff was of mixed blood three fourths white and one fourth Indian, and his mother was a white woman; and that the plaintiff, on the 8th of November, 1864, at the election held, etc...offered to vote, and tendered his vote, and was, by the defendants, judges, etc...hindered from voting, that the plaintiff had been allowed in that township for more than eight years before, except two or three years; that the defendants, with the knowledge of all the facts concerning the plaintiff's pedigree and blood, willfully refused to receive his vote on account of his color. On which facts the court finds for the plaintiff, and assesses his damages. Motions for a new trial, and for judgement in favor of the defendants upon the finding were overruled, and rendered for the plaintiff.
It is objected to the sufficiency of the finding, that is does not appear that the plaintiff was twenty-one years of age, nor that he was a "white male citizen". We think the facts found sufficiently show the plaintiff is a "white male citizen of the United State"; that he had resided in the State during the six months immediately proceeding the election at which he offered to vote; and that at the time, he resided in the township in which the election was being held, and that he was a legal voter within the meaning of section 2, article 2, of the constitution of the State, provided he was twenty-one years of age. The judges of this court differ on the question, as to whether it sufficiently appears from the finding that the plaintiff was, at the time he offered to vote, twenty-one years of age. The conclusions of law from the facts found are not, we think, properly stated to the court below as contemplated by section 341 of the code, supra. But the defects, if any, are not presented to this court in a manner to avail the appellants. A motion for a new trial is not the mode to reach a defect in the finding or verdict.
In Losseker v. Cramer, 18 Ind. 44, this court held that where a verdict, either general or special, is imperfect, by reason of some uncertainty or ambiguity, or by finding less that the whole matter put in issue, or by not assessing damages, the proper stop for relief against it is not by a motion for a new trial, but by an application for a venire de novo. The defect complained of in the finding is not one of the causes for a new trial under the code. 2 G. & H., sec 352, pp 211-214.
The motion for judgment in favor of the defendants was not the proper remedy. Such a motion can only be made where, the court, at the request of either party, has instructed the jury if they render a general verdict, to find specially upon particular questions of fact stated to them in writing. 2 G. & H., sec 336, pp 205-206.
If the court below had stated its conclusions of law upon the facts found, the case would have been properly prepared for review in this court by excepting to the decision. Addleman v Erwin, 6 Ind. 494.
The judgement is affirmed, with costs.
A. Ellison for appellants.
A.Y. Hooper, for appellee.
State of Indiana, Whitley County: I, Hugo Logan, Clerk of the Circuit Court of Whitley County, in the State of Indiana, do hereby certify that the attached and foregoing instrument is a full, true and correct copy of the decision of the Supreme Court of Indiana in the case of Smith and Others v Jeffries, at the November Term, 1865, as reported in the official Indiana Supreme Court Reports, Vol. 25 on pages 376-379. In Testimony Whereof, I have hereunto set my hand and the seal of said Court, affixed at Columbia City, this fifth day of March, 1908.
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