Barnett v. Lucas.

ATTACHMENT.-Action on Bond.-Evidence.-In an action upon an attachment bond it devolves upon the plaintiff to show that his property was levied upon by virtue of the writ in attachment, to procure which the bond was executed. p. 444.

SAME.-Action on Bond.-Damages.-A verdict for $615 in favor of plaintiff in an action on an attachment bond will not be set aside as excessive, where the evidence showed that the land levied upon was valued at $2,356.50, and some of the evidence relative to the value of services of attorneys would have justified a larger and some a smaller verdict, and the other expenses incurred were shown to have been large. p. 444.

From Hendricks Circuit Court; T. J. Cofer, Judge.

Action by Wm. T. Lucas against Levi A. Barnett on an attachment bond. From a judgment for plaintiff, defendant appeals. Affirmed.

E. G. Hogate and J. L. Clark, for appellant.

E. A. Miles, G. E. Easley, G. W. Brill and G. C. Harvey, for appellee.

ROBY, J.-On June 3, 1895, John T. Barnett filed a complaint against appellee and had a writ of attachment. Appellant signed the attachment bond as surety. The complaint charged appellee, who was at the time a resident of The Hawaiian Islands, with having defrauded the plaintiff in an exchange of merchandise, located at Piqua, Ohio, for a tract of real estate in Hendricks county, Indiana. Judg. ment was asked for $6,000, and the plaintiff, while testifying, claimed $4,396.67 as the amount due him. A number of capable attorneys were employed on each side. The venue of the case was changed from Hendricks to Putnam county, trial in May, 1897. After three days had been oc cupied the plaintiff dismissed. Depositions were taken in the Hawaiian Islands, at Salt Lake City, and in Ohio. The present action was brought upon the attachment bond by the appellee against the appellant, his principal not being made a party. Trial by jury resulted in a verdict for $615. Judgment was rendered upon the verdict, and motion for a new trial overruled. The appellant has assigned as error

Barnett v. Lucas.

and argued the action of the court in overruling the motion for a new trial.

The complaint avers that upon the dismissal of the action in which the attachment was had, that the attorneys for the plaintiff therein withdrew from the files of the court the bond in suit, and have failed to return it "and the same is lost or is in the possession of the defendant or of said John T. Barnett." It is argued that the evidence fails to trace the instrument into the possession of either of the Barnett's, and that the allegation must have been proved as made before secondary evidence of the contents of the bond was admissible. The allegation is that the bond was lost or in possession of the opposite party. There was no dispute as to its loss.

Both the Barnetts disclaimed any knowledge of its whereabouts. Search in the proper office by the proper persons was fruitlessly made and secondary evidence became essential to present the merits of the cause.

A copy of the original bond was produced and certified by one of the witnesses. He was asked to refresh his recollection from the copy. State the contents of the bond. His answer was: "It starts out, State of Indiana, Hendricks county," etc., (giving the statutory form of an attachment bond). A motion was made to strike out the answer for the reason that the witness did not give his knowledge of the contents of the bond, but read his answer from the copy. The objection does not prove its own facts and no place is indicated where they are established by cross-examination or otherwise, but waiving that, no error was committed. The proof of a lost record or document should be made by the best obtainable evidence, and an examined copy ranks next to a certified copy. Jones v. Levi, 72 Ind. 586, 591; Greenleaf on Ev., $84.

The witness found his recollection by the reference to the copy. The copy might have been read in evidence or the witness might testify from recollection refreshed by it. Higgins v. State, 157 Ind. 57.

Nichols v. State.

In order to recover, it devolved upon appellee to show that his property had been levied upon by virtue of the writ in attachment, to procure which the bond in suit was executed. Trentman v. Wiley, 85 Ind. 33, 35.

The deputy sheriff of Hendricks county testified that he levied an attachment in the case of John Barnett v. Wm. T. Lucas upon the land belonging to the defendant. The appellant, while testifying, was asked the following question, and made the following answer: Q. Do you know as a matter of fact whether this land was attached by the sheriff? A. Yes, sir, it was. No objection was made to this manner of proving a fact relative to which there seems to have been no controversy.

It is argued that the recovery was too large. It appears in evidence that the land levied upon was valued at $2,356.50. Much evidence was introduced relative to the value of services of attorneys. Some of it would have justified a smaller verdict, some of it demanded a larger one. The expenses incurred, aside from attorney fees were large, and the verdict is regarded as reasonable.

The jury were fully instructed. The instructions refused, in so far as they stated correct propositions of law, were covered by those given by the court of its own motion. Judgment affirmed.

CRIMINAL

NICHOLS V. THE STATE.

[No. 3,732. Filed October 22, 1901.]

LAW.-Misdemeanors.-Appeal.—Statute.- Repeal.— Section 1954 Burns 1901, in so far as it gave a right of appeal to a defendant convicted of a misdemeanor, is repealed by §§7 and 8 of the act of 1901 (Acts 1901, p. 566), which prescribe that no appeals in prosecutions for misdemeanors shall thereafter be taken, except when the validity of a franchise, or the validity of an ordinance of a municipal corporation, or the constitutionality of a statute or rights guaranteed by the State or federal Constitution are involved. pp. 446, 447.

Nichols v. State.

CRIMINAL LAW.-Appeal, When Taken.-Under §1960 Burns 1901, an appeal by defendant in a criminal case is "taken" when the defendant serves a written notice upon the prosecuting attorney. p. 447. SAME.-Misdemeanor.—Appeal Taken Before the Act of 1901.-Section 7 of the act of 1901 (Acts 1901, p. 566), providing that "no appeal shall hereafter be taken * * * in any criminal case of misdemeanor," etc., does not apply to an appeal that had been taken, though not perfected, under a preëxisting law. pp. 445-450.

From Marion Criminal Court; Fremont Alford, Judge. From a conviction for acting as agent of a lottery, the defendant, Will Nichols, appeals. Motion to dismiss appeal denied.

E. Marshall, H. Seyfried, J. J. Rochford and J. M. Wall, for appellant.

W. L. Taylor, Attorney-General, and J. C. Ruckleshaus, for State.

WILEY, P. J.—The Attorney-General has filed a motion to dismiss the appeal in this case "for the reason that the same is taken in a criminal case of misdemeanor and does not duly present the question as to the validity of any franchise or of any ordinance of a municipal corporation, or of the constitutionality of any statute, State or federal, or the proper construction of any statute or rights guaranteed by the State or federal Constitution."

Appellant was charged by affidavit and information of acting as the agent of a certain lottery scheme, in violation of $2171 Burns 1901, $2077 Horner 1897. Trial by the court, resulting in a finding of guilty, and the penalty assessed was a fine of $200. The offense with which appellant was charged is made a misdemeanor by statute.

The trial was had and judgment rendered December 28, 1900. January 3, 1901, during the same term of court, appellant moved for a new trial, and said motion was thereupon overruled. He was given sixty days in which to file a bill of exceptions, and at the same time, in open court, prayed an appeal to this court, which was granted, and the

Nichols v. State.

appeal bond fixed at $400. January 5, 1901, appellant served written notice upon the prosecuting attorney of his appeal. February 20th, he filed his appeal bond, which was duly approved, and on March 19, 1901, lodged the transcript of the record in this court, with his assignment of errors. The record thus made, and as it comes to the court, entitled appellant to prosecute his appeal under the general statute providing for appeals, unless his right thereto is taken away by the act of 1901.

By $7 of that act, $1337g Burns 1901, it is provided that "No appeal shall hereafter be taken to the Supreme Court or to the Appellate Court, etc.,

*

* * except

Section 8 of the

"Every case in

as provided in section eight of this act." act, $1337h Burns 1901, is as follows: which there is in question, and such question is duly presented, either the validity of a franchise, or the validity of an ordinance of a municipal corporation or the constitutionality of a statute, State or federal, or the proper construction of a statute, or rights guaranteed by the State or federal Constitution, and which case would be otherwise unappealable by virtue of section six or section seven, shall be appealable directly to the Supreme Court, for the purpose of presenting such question only." It may be proper to remark in this connection that $6, referred to in the section last quoted, refers to appeals in civil cases, and takes away the right to appeal in such cases, which are within the jurisdiction of a justice of the peace, except as provided in §8. $1337f Burns 1901, Acts 1901, p. 565.

A correct ruling on the motion to dismiss, now before the court, involves the construction of the statute cited, as applied to the facts disclosed by the record, in connection with the general statutes regulating appeals in criminal cases, and particularly $$1954, 1958, 1960 Burns 1901.

By $1954, supra, it is provided that "An appeal to the Supreme Court may be taken by the defendant as a matter of right, from any judgment in a criminal action against him," etc.