Jones et al. v. Carnahan et al.

said judgment had been publicly read in open court, as the law directs. Wherefore your petitioners pray that said execution may be set aside, and said levy vacated," etc.

It is admitted in the motion, that a valid and accurate judgment was recovered by Carnahan and Murphy, against Roach, on the morning of the 2d day of December, 1875. It is not denied that said judgment was duly recorded, nor that it had been read and signed by the court, before the execution issued; but the complaint is, that it had not been publicly read and signed in open court, and it is insisted, that, for this reason, the execution was void.

A demurrer was sustained to the motion, and judgment overruling it rendered.

Error is assigned upon this action of the court.

The following is a section of the circuit court act, 2 R. S. 1876, p. 6, which was approved June 1st, 1852:

"SEC. 22. It shall be the duty of the clerk of the circuit court to draw up each day's proceedings at full length, and the same shall be publicly read in open court, after which they shall be signed by the judge; and no process shall issue on any judgment or decree of the court until it shall have been so read and signed."

The code of procedure act was approved June 18th, 1852, the 405th section of which is as follows, 2 R. S. 1876, p. 197:

"Writs of execution, as now used for the enforcement of judgment, are modified in conformity to this chapter [article], and any party in whose favor judgment has heretofore been, or may hereafter be rendered, may, at any time within ten years after the entry of judgment, proceed to enforce the same, as prescribed in this chapter [article]." This section is as originally enacted, except that ten years have been substituted for five, as the time within which execution may issue afte. judgment. It is contended that this

Jones et al. v. Carnahan et al.

section, being later than section 22 of the circuit court act, above quoted, repealed that section, and Carpenter v. Vanscoten, 20 Ind. 50, somewhat favors this proposition; but it will not be necessary for us, here, to express an opinion upon it.

We are satisfied said section 22, relied upon by appellants, is directory, and that the execution issued in this case, while it may have been irregular, was not void. We say it may have been irregular. The facts as to how, when or where the judgment was read, are not stated in the motion, but simply a conclusion of law. The presumption is, that the judgment was duly read and signed.

In Nave v. King, 27 Ind. 356, it is said:

"In The People v. Allen, 6 Wend. 486, the court, as we think, correctly laid down the general rule to be, that where the statute specifies the time within which a public officer is to perform an official act regarding the rights and duties of others, it will be considered as directory, unless the nature of the act to be performed, or the language used by the Legislature, shows that the designation of time was intended as a limitation of the power of the officer."

The cases bearing upon the question of the validity of the execution, in the case before us, are quite numerous, and, as we think, they establish two propositions:

1. That the execution may have been irregular, but not void; and,

2. That no one not a party to such execution can object to it.

The cases are collected in Freeman on Executions, section 25, to which work we refer for a statement of them. The author says:

"An execution issued in Massachusetts, in violation of the statute directing that no execution shall be issued within twenty-four hours after the entry of the judgment,' was adjudged to be void, and the title derived therefrom

Jones et al. v. Carnahan et al.

was disregarded. Penniman v. Cole, 8 Met. 496. In the same State, a justice of the peace, who issued execution within less than twenty-four hours after the rendition of judgment, was held liable therefor in an action of trespass. Briggs v. Wardwell, 10 Mass. 356. But a very decided preponderance of the authorities is against the first decision above referred to, and in favor of the proposition that the premature issuing of an execution is an irregularity merely. The execution is erroneous, but, like an erroneous judgment, it must be respected, and may be enforced, until it is vacated in some manner prescribed by law. No one but the defendant can complain of it; and even he can not do so in any collateral proceeding." He cites Wilkinson's Appeal, 65 Pa. State, 190; Lynch v. Kelly, 41 Cal. 232; Blaine v. The Ship Charles Carter, 4 Cranch, 333; Carson v. Walker, 16 Mo. 85; Bacon v. Cropsey, 7 N. Y. 199. See, also, Mariner v. Coon, 16 Wis. 490; Jones v. Davis, 24 Wis. 229; Doe v. Harter, 2 Ind. 252; Willson v. Binford, 54 Ind. 569.

The cases cited in Freeman, supra, support the text.

We may properly call attention to the fact that section 22 of the circuit court act contains two clauses: the first directing each day's proceedings to be drawn up, read in open court and signed by the judge; the second declaring that no process (execution) shall issue on any judgment or decree till it has been so read and signed, contemplating that single judgments or decrees may be read and signed separately from the whole proceedings, so that execution may issue thereon. Hunter v. The Burnsville Turnpike Co., 56 Ind. 213.

The judgment is affirmed, with costs.

Opinion filed at May term, 1878.

Petition for a rehearing overruled at November term, 1878.

Robinius v. The State.

ROBINIUS V. THE STATE.

LIQUOR LAW.-Sale to Minor.—A sale of intoxicating liquor to a minor, made by the seller in the reasonable and honest belief that such minor is of full age, is not a violation of the liquor law.

SAME.-Personal Appearance of Minor.-The court has no right to take into account, in determining the guilt or innocence of such seller, the personal appearance of such minor, as to age.

From the Marion Criminal Circuit Court.

D. V. Burns and C. S. Denny, for appellant.

T. W. Woollen, Attorney General, and J. B. Elam, Prosecuting Attorney, for the State.

Howк, C. J.-In this case the indictment charged, in substance, that, on the 5th day of September, 1878, at Marion county, Indiana, the appellant unlawfully sold to Edward Geisendorff, who was then and there a person under the age of twenty-one years, one pint of intoxicating liquor, at and for the price of ten cents, contrary to the form of the statute, etc.

On arraignment the appellant pleaded, that he was not guilty of the charge in the indictment.

The cause was tried by the court, without a jury, and a finding was made, that the appellant was guilty as charged, and he was assessed with a fine and the costs of the prosecution.

The appellant's motion for a new trial was overruled, and he excepted to this decision, and judgment was rendered by the court on its finding.

In this court the appellant has assigned as error the decision of the court below, in overruling his motion for a new trial. In this motion the appellant assigned the following causes for such new trial:

1. The finding of the court was contrary to the evidence; and,

2. The court erred in taking into consideration the

Robinius v. The State.

appearance of the witness, Edward Geisendorff, in determining the question of the guilt or innocence of the appellant.

The evidence is properly in the record. On the part of the State, Edward Geisendorff' testified, that he was seventeen years of age, and that he only knew his age from what his mother told him; that he knew the appellant, and had been given the money, at the time named in the indictment, to go to the appellant's saloon and get a drink; that the person who gave him the money declined to go into the saloon with him, and he then got another man to go in with him; that he bought, from the appellant's barkeeper, two glasses of lager beer, which was intoxicating liquor, and which he paid for, and he and his companion drank the same, in the appellant's presence; and that the man who gave him the money said that he would like to get an indictment against the appellant.

The man who drank with Geisendorff, in the appellant's saloon, testified that Geisendorff bought and paid for two glasses of lager beer, which they drank in the appellant's saloon, and that the beer was bought from, and the money paid to, the appellant's bartender. The venue was proved, and the State rested.

The appellant and his bartender testified, that they remembered the transaction about which the State's witnesses had testified; that, when Geisendorff called for the glasses of beer, the bartender asked him if he was of age, and he answered that he was, and that his companion had said that he would swear that Geisendorff was of age. The appellant and his bartender further testified, that they believed Geisendorff was of age, and, if they had not believed so, they would not have sold to him.

In rebuttal, Geisendorff denied that he had said to the appellant, or his bartender, any thing about his age; and Geisendorff's companion denied that he had said any thing,