Shulse v. McWilliams. it can be considered part of the record, must have been filed as required by section 629, R. S. 1881. From the Hamilton Circuit Court. C. S. Wesner, F. M. Charlton, T. W. Lockhart, T. J. Kane and T. P. Davis, for appellant. T. H. Palmer, for appellee. Howk, J.-In this case the appellee sued the appellant in the Boone Circuit Court to recover damages for slander. As originally filed, appellee's complaint contained four paragraphs, but, before the trial of the cause, she dismissed her suit as to the second and third paragraphs of her complaint. Issues were joined upon the first and fourth paragraphs of complaint, and, the venue of the cause having been changed to the court below, were there tried by a jury, and a verdict was returned for the appellee, assessing her damages in the sum of $400. Over appellant's motion for a new trial, the court rendered judgment against him on the verdict, in appellee's favor, for the damages assessed and costs. In this court, the first ruling below complained of as erroneous, by appellant's counsel in argument, is the overruling of appellant's motion for leave to open and close the trial of the cause to the jury. On this point, the rule of practice under section 536, R. S. 1881, of our civil code, is, that the party having the burden of the issue, on the trial, shall have the opening and closing of the case to the jury. Kinney v. Dodge, 101 Ind. 573. In the first and fourth paragraphs of her complaint, the appellee alleged that the appellant had 1.66 falsely, maliciously and slanderously" spoken to certain named persons, of and concerning appellee, certain "false, malicious and slanderous words," setting them out, imputing to her a want of virtue and chastity. To these paragraphs the appellant answered in a single paragraph, covering six pages of closely-written legal-cap paper, which it is difficult to characterize. It was prepared, apparently, for the purpose VOL. 104.-33 Shulse v. McWilliams. of enabling the appellant to obtain the opening and closing of the case to the jury; but it failed, and properly so, we think, to enable him to accomplish such purpose. After admitting that he had spoken substantially the same words, stated in the complaint, setting them out and giving at great length his version of the circumstances under which the words were spoken, his answer proceeds as follows: "The defendant avers that all statements made by him, alleged in the complaint of the plaintiff, were of and concerning such plaintiff, but without malice." It will be readily seen that this answer does not confess and avoid the cause of action stated in appellee's complaint. On the contrary, it affirms facts which are utterly inconsistent with the truth of facts entering into and constituting a material element in appellee's cause of action. Such an answer is what is generally called an argumentative denial pro tanto of the complaint, and the burden of the issue formed by such denial is of course on the plaintiff and gives her the right to open and close. Rothrock v. Perkinson, 61 Ind. 39; Kinney v. Dodge, supra. There was no error, therefore, in the court's refusal to allow appellant to open and close the case to the jury. Appellant's counsel next insist, that the trial court erred in permitting the jury to take with them, in their retirement to consider of their verdict, the pleadings in the cause. There was no error in this action of the court. Snyder v. Braden, 58 Ind. 143; Summers v. Greathouse, 87 Ind. 205. In each of the cases cited it is squarely decided that there is no error in placing the pleadings in the cause in the hands of the jury; and the appellant's objection and exception to the action of the court are limited to the pleadings in the cause. The next error, of which appellant's counsel complain in argument, is the giving of certain instructions to the jury trying the cause. Appellee's counsel earnestly insists, that the instructions complained of are not properly in the record and, therefore, can not be considered. This point seems to Shulse . McWilliams. be well taken. The appellant attempted to make all the instructions given by the court, and those requested by him and refused, a part of the record of this cause, by having the same embodied in a bill of exceptions. What purports to be such a bill of exceptions has been copied by the clerk of the court below into the transcript before us; but there is nothing in the transcript to show that such bill was or had ever become a part of the record of this cause. In section 629, R. S. 1881, of our civil code, it is provided that such a bill of exceptions must be filed in the cause; and "When so filed, it shall be a part of the record." In the transcript of this cause there is no memorandum, recital or file-mark to indidicate when such bill of exceptions was filed, or, indeed, that it ever has been filed in this cause. What purports to be such bill is not a part of the record of this cause, and therefore the instructions, as well those given as those asked for and refused, are not in the record and can not be considered. This is settled by the decisions of this court. Loy v. Loy, 90 Ind. 404; Louisville, etc., R. W. Co. v. Harrigan, 94 Ind. 245; Pratt v. Allen, 95 Ind. 404. We can not disturb the verdict of the jury on the evidence. It fairly tends to sustain the verdict on every material point. In such case, where the verdict has met the approval of the trial court, we must decline, as we always have declined, to reverse the judgment on the evidence. We find no error in the record. The judgment is affirmed with costs. Filed Nov. 7, 1885; petition for a rehearing overruled Jan. 9, 1886. Jackson v. The State, for Use of Dyar, Drainage Commissioner. No. 11,787. 104 516 128 76 101 516 130 520 104 516 131 220 104 516 134 522 135 335 104 516 148 691 151 193 152 579 104 516 155 488 104 516 158 337 104 516 f167 54 JACKSON . THE STATE, FOR USE OF DYAR, Drainage DRAINAGE.-Notice.-Collateral Attack.-Where, in a drainage proceeding From the Howard Circuit Court. J. W. Kern, J. W. Cooper, B. F. Harness, J. C. Blacklidge, W. E. Blacklidge and B. C. H. Moon, for appellant. M. Garrigus, for appellee. ELLIOTT, J.-The appellee's complaint seeks to enforce a drainage assessment, levied under the act of April 8th, 1881. The sufficiency of this complaint is challenged upon two grounds: First. That there was not such notice as the statute requires, for the reason that there was but nineteen days notice, instead of twenty as the statute requires. Second. That it fails to show that the appellant, or his grantor, was a party to the original proceedings. Of these in their order: First. There was notice, and, although defective, the order based upon it was not void. This doctrine is affirmed in many cases. Quarl v. Abbett, 102 Ind. 233; Brown v. Goble, 97 Ind. 86, see auth. p. 89; City of Terre Haute v. Beach, 96 Ind. 143; McCormick v. Webster, 89 Ind. 105; Million v. Board, etc., 89 Ind. 5, vide p. 12; Oppenheim v. Pittsburgh, etc., R. W. Co., 85 Ind. 471; Stout v. Woods, 79 Ind. 108; McAlpine v. Sweetser, 76 Ind. 78; Hume v. Conduitt, 76 Ind. 598; Muncey v. Joest, 74 Ind. 409. Jackson r. The State, for Use of Dyar, Drainage Commissioner. The general rule is thus expressed in Morrow v. Weed, 4 Iowa, 77: "If there be a notice or publication, or whatever of this nature the law requires in reference to persons or other matters, its sufficiency can not be questioned collaterally." This doctrine was reaffirmed by the same court in Bonsall v. Isett, 14 Iowa, 309, and in Ballinger v. Tarbell, 16 Iowa, 491. The great current of authority runs in favor of this doctrine. Hendrick v. Whittemore, 105 Mass. 23; Cook v. Darling, 18 Pick. 393; Finneran v. Leonard, 7 Allen, 54; Wright v. Marsh, 2 Greene (Iowa), 94; Paine v. Mooreland, 15 Ohio, 435; Borden v. State, etc., 6 Eng. (Ark.) 519; Sheldon v. Wright, 5 N. Y. 497; Delaney v. Gault, 30 Pa. St. 63; Callen v. Ellison, 13 Ohio St. 446; People v. Hagar, 52 Cal. 171. It has long been the rule in this State, that where a court is required to determine whether facts essential to jurisdiction exist, a judgment that they do exist will be conclusive as against a collateral attack. Evansville, etc., R. R. Co. v. The City of Evansville, 15 Ind. 395. It was said in that case: "It is a well settled principle, that where the jurisdiction of an inferior court depends upon a fact which such court is required to ascertain and settle, by its decision, such decision is conclusive." The doctrine of that case has been repeatedly asserted, and we cite only a few of the many cases that have adopted and enforced it. Forsythe v. Kreuter, 100 Ind. 27; Young v. Wells, 97 Ind. 410; Smith v. Hess, 91 Ind. 424; Million v. Board, etc., 89 Ind. 5, and authorities cited p. 14; City of Madison v. Smith, 83 Ind. 502; Marshall v. Gill, 77 Ind. 402. This rule is well supported by the decisions of other courts. Grignon's Lessee v. Astor, 2 How. 319; Riley v. Waugh, 8 Cush. 220; Cooper v. Sunderland, 3 Clarke, (Iowa) 114; Henderson v. Brown, 1 Caines, 92; Vail v. Owen, 19 Barb. 22; Youngman v. Elmira, etc., R. R. Co., 65 Pa. St. 278; Sheldon v. Wright, supra. These cases proceed on the theory that the court has authority to decide all questions, whether affecting the jurisdiction or other matters, and this is the only logical ground |
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