Pruitt v. Cox. PRUITT v. Cox. SEDUCTION-PLEADING.-In an action by the father against the PLEADING.-A pleading based upon the proceedings and judgment of a Court will be demurrable, unless it be accompanied by a transcript of the record. APPEAL from the Marion Circuit Court. HANNA, J.-Appellant sued appellee for the seduction of his daughter. Answer: first, in denial; second, in mitigation, that the daughter had already sued and recovered 75 dollars for the same seduction. Demurrer to the second paragraph overruled. Trial and judgment for the defendant. Rulings on the demurrer, on the admission of evidence, and in instructing the jury, are objected to as erroneous. As to the demurrer, there is no doubt it was well taken, because the paragraph of the answer was based upon the proceedings and judgment of a Court and a transcript of the record was not filed. But on the main point, to-wit: whether 21 15 135 271 Pruitt v. Cox. such recovery could be set up in mitigation, we are of opinion that it could not. Whatever the parent might recover would be for the loss of services, wounded feelings, &c, Shattuck v. Myers, 13 Ind. 52, and would go to his own use. That which might have been recovered by the female seduced was for her use, and in which the father could have no direct interest, and over which he had no control. There was a direct conflict in the testimony of the female, who it was alleged had been seduced, and the defendant, who were both witnesses, as to the fact of carnal intercourse having taken place. Beyond this conflict there was no impeachment of the character of either for truth; no evidence attacking the general character for veracity. The defendant offered, under these circumstances, several witnesses to sustain his general character for truth and veracity. The Court, over the defendant's objection, admitted the evidence. This was erroneous. "Mere contradiction among witnesses examined in Court, supplies no ground for admitting evidence of general character." 1 Greenleaf, sec. 469, and authorities cited. Whether this rule is founded on reason or not, it is assuredly in convenience. For if, in the multiplicity of contradictions daily occurring, each witness was permitted to bring in other witnesses to sustain his general character-and they, contradicting each other, should be permitted to bring in others, the whole time of our courts would be taken up in hearing these side questions, until the matters originally in litigation would be almost lost sight of, to the great detriment of suitors. The Court instructed the jury correctly that the case, being a civil suit, should be decided on the weight of evidence; and that, if the evidence was evenly balanced, the plaintiff could not recover; but afterwards said to them: "As to the main fact of sexual interecourse, the daughter swears to this fact, and the defendant denies it; if these two witnesses, as Pruitt v. Cox. they stand before you, seem equally to claim your credence, you can not in such a case find for the plaintiff, because, as to that fact, which is radical in the case, there is no preponderance for the plaintiff." This instruction appears to assume that there was no other evidence, either positive or circumstantial, tending to establish this fact. The female had testified that several acts of copulation had taken place, at divers times, in the month of June, 1860, at the barn of defendant, where she daily went to milk and feed a cow, she being then hired to defendant. The defendant directly contradicted this, and stated that he "was not alone with her at the barn at any time in the year 1860, unless she was passing round when I was there. Did not remember of ever going into the barn with her." One Ballard testified that he was "at work for the defendant in May, 1860, between the house and barn; saw her and defendant together several times at the barn, where she went to milk the cows. The defendant would sometimes go in before her and sometimes just after. Saw her go there one time about ten o'clock, A. M., after potatoes, and defendant followed then." The existence of this testimony seems to have been ignored by the Court in the instructions; although the record shows that the defendant had attacked the general reputation of said Ballard for truth by several witnesses. It appears to us the instruction had a tendency to, and perhaps did, mislead the jury. Per Curiam.-The judgment is reversed, with costs. Cause remanded. Giltner, Nave & Witherow, for the appellant. VOL. XXI.-2. Guy v. Pierson and Others. JONES V. WHITWORTH. APPEAL from the Posey Circuit Court. Per Curiam.-This was an action for the possession of personal property, namely: wheat. The suit was commenced before a justice; judgment for the plaintiff before the justice, and also in the Circuit Court, to which an appeal was taken. There does not appear to have been any pleading filed, or motion made, touching the validity of the complaint or writ. The questions sought to be pressed here have reference to validity of the complaint and sufficiency of the evidence. It is too late to present now, for the first time, the points raised upon the former question, and, as to the latter, the record is not in such form as to enable us to say that the whole evidence is therein contained. The judgment is affirmed, with 5 per cent. damages and costs. Carloss R. Kelsey and Harvey D. Scott, for the appellant. GUY V. PIERSON and Others. JURISDICTION-DECEDENT'S ESTATES.-In an application by an administrator for an order to sell real estate, if the record show that the heirs were not otherwise notified of the pendency of the proceedings than by the appointment of a guardian ad litem for them, and citing him to appear and show cause why the property should not be sold, the Court would have no jurisdiction over them, and the proceeding as to them would be a nullity. SAME-PRACTICE.-In such a proceeding, f the record fail to name the heirs otherwise than by the general designation, "heirs," the Guy v. Pierson and Others. proceeding will also be void as to them, and there could arise no presumption that the Court had acquired jurisdiction over any other persons than those named, and, in such case, the heirs could not prosecute an action for review of the proceeding, because they were not parties to it; but it would be otherwise if the proceedings had been against them as unknown heirs. APPEAL from the Morgan Common Pleas. WORDEN, J.-This was an action by the appellant against the appellees. The complaint alleges that, in 1837, Laban Guy, the father of the plaintiff, was seized in fee of a certain parcel of land, described in the complaint, and in that year died, leaving a widow, and some other children, naming them, besides the plaintiff; that afterwards, in the year 1838, James Johnson, the administrator of the estate of the deceased, procured an order from the Probate Court of said county for the sale of said land, for the payment of the debts of the deceased; that the children and heirs of the deceased were not made parties to the application for such sale; that in October, of the same year, the land was accordingly sold to said Pierson; and that, in 1841, the sale was confirmed, and a conveyance made to said purchaser. The record of the proceedings of the Probate Court is set out and made a part of the complaint. It is further averred, that at the time of the sale, &c, the plaintiff was an infant, and did not arrive at 21 years of age until the 22d day of October, 1858; that since said sale, the said Pierson has had possession of the land, and has received the rents and profits thereof, amounting to 1,050 dollars per annum over expenses, &c. It is alleged that the proceedings of the Probate Court are erroneous, &c. Prayer for a review, &c., and that the plaintiff may recover possession of onefourth of the land, with the value of the rents, and profits, and damages, and for general relief. |