Imágenes de páginas
PDF
EPUB

Ferrier r. Deutchman.

pleas of the State in this behalf, and moves the court to dismiss this cause, for the reason that this court has no jurisdiction thereof, and this cause is dismissed. It is further considered by the court that the plaintiff recover of the defendant all costs in aud about this court expended."

The court below ruled out the above "files and entries," and appellant excepted, and assigned the ruling as a cause for a new trial.

It very clearly appears from the offered evidence, as it did not appear upon the former appeals {Ferrier v. Deutchman, 51 Ind. 21, Ferrier v. Deutchman, 81 Ind. 390), that three of the judgments under which the sale was made by the sheriff were in criminal cases.

How those cases came to be docketed in the common pleas court is not shown by the record, except by the entry of the justice of the peace. It is shown by his entries that after appellee had been convicted by him, he took appeals to the criminal court, and that those appeals were perfected by the filing of bonds or recognizances, and the transmission and filing of the papers in the criminal court. There is a further entry that, subsequent to the perfecting of the appeals to the criminal court, appellee " took appeals to the common pleas court," but it is not recited that he filed additional appeal bonds or recognizances, or that the papers were transmitted to, and filed in, the common pleas court; indeed, it is apparent that the papers in the cases could not have been so transmitted and filed, for the reason that they had already been transmitted to, and filed in, the criminal court. The cases, however, seem to have been docketed in the common pleas court, and it is not material for the purposes of this decision whether or not proper transcripts and papers were filed in that court.

Prior to 1869 the common pleas court had jurisdiction in cases of misdemeanors. Before the appeals were taken, a criminal court had been established in Clark county, and had exclusive jurisdiction in all criminal prosecutions in the Ferrier r. Deutchmau.

county, both original and on appeal from justices' courts. After the establishment of the criminal court the common pleas court had no criminal jurisdiction either original or on appeal from justices' courts. That seems to have been understood by the judge of that court and by the prosecuting attorney, and, hence, the motion by the prosecuting attorney and the orders of the court dismissing the causes.

For some reason, not apparent, the judge went further, and rendered judgments in favor of the State and against appellee for the costs made in that court. Were those judgments void? We think they were. In the first place,the common pleas court had no jurisdiction to render a judgment of any kind in criminal causes. It could no more render a judgment for costs against a defendant than it could render a judgment of conviction. It was the duty of that court, upon finding criminal causes upon its dockets, to dismiss them if brought there originally, or to dismiss the appeals if brought there by appeals, and thus clear its dockets of causes over which it had no jurisdiction.

The renditi?n of judgments for costs in favor of the State and against appellee was the exercise of jurisdiction, and jurisdiction the court did not have. Counsel for appellant cite Dixon v. Hill, 8 Ind. 147, and Dyer v. Board, etc., 84. Ind. 542. Those were civil cases, and are neither conclusive nor authority here. In one case the common pleas court had jurisdiction to proceed until the title to real estate came in question, and, of course, up to that point had authority to tax costs. In the other case the circuit court had general jurisdiction of the subject-matter. The infirmity was in the proceedings in the particular case. But here, as we have said, the common pleas court did not have, and could not by any act of the parties be clothed with jurisdiction of the subject-matter. And, in the second place, the statute then in force provided that in all criminal causes where the person accused should be acquitted no costs should be taxed against him. 1 G. & H., p. 338, section 25.

Ferrier t. Dentchman.

Upon the motion of the prosecuting attorney the court dismissed the causes. If we assume that the court had authority to dismiss the causes, and take the orders of the court literally, they amounted to an acquittal; on the other hand, if the orders be interpreted as dismissals of the appeals, they were equivalent to acquittals so far as that court was concerned. In either case the court had no authority to adjudge costs against the defendant.

This is not a case of irregularities in the proceedings. Here the judgments were rendered by a court without jurisdiction over the subject-matter, and in violation of a statute. It is not a case of voidable judgments, but a case of void judgments, the infirmities being apparent upon the face of the record. The judgments being void, all subsequent proceedings based upon them were also void.

This conclusion renders it unnecessary for us to examine the fourth judgment for costs, and the proceedings under it, upon which appellant, in part, bases his claim of title.

Writs upon that judgment, and upon the three judgments for costs in the criminal cases, were issued to the sheriff. He levied them at the same time upon appellee's real estate, and sold it upon all of them.

The three writs w«re void, because the judgments upon which they were issued were void. The sale by the sheriff was, therefore, under our decision, void, even conceding that the other judgment and all proceedings under it were regular and valid. Brown v. McKay, 16 Ind. 484; Hutchens v. Doe, 3 Ind. 528.

The sale being void for the reasons above stated, the judgment could not have been otherwise than for appellee, although the other judgment and the proceedings under it were, so far as they were concerned, regular and valid. It is, therefore, immaterial whether the court below ruled correctly or erroneously in excluding anything pertaining to or based upon that other judgment.

Judgment affirmed with costs.

The State, ex rel. Robinson, v. Carr, Auditor of State.

Elliott, J., did not participate in the decision of this cause.

Filed June 22, 1887.

[ocr errors]

'No. 13,809.

The State, Ex Rel. Robinson, V. Carr, Auditor Of

State.

State University.Character of Corporation.Endowment Fund.Interest. —The State University is not a public corporation, but a private, or at most a quasi public one, and its endowment fund is not embraced by the phrase "public funds" as used in section 5205, R. S. 1881, fixing the rate of interest upon the latter class of funds at eight per cent.

Same.Repeal of Statute.—Interext on Public Funds.—Auditor of State.—Sec-
tion 4600, R. S. 1881, requiring the auditor of state to loan the uni-
versity fund, for which provision is made by section 4595, at seven per
cent, interest, was not repealed by the later enactment, section 5205,
fixing the rate of interest on public funds at eight percent, and repeal-
ing "all acts on the subject of interest, including such as relate to
interest on public funds."

From the Marion Circuit Court.
W. B. Hord, for appellant.

L. T. Michener, Attorney General, and J. H. Gilldt, for appellee.

Mitchell, J.—The only question for decision in this case relates to the rate of interest which the auditor of state is required to demand upon loans of the "university fund."

The law under which the State University was established provides that the university fund shall consist of certain lands in Monroe and Gibson counties, and the proceeds of sales thereof, and all donations for the use of the university, when the same is expressly mentioned in the grant, or where in such grant the term "university" only is used. Section 4595, R. S. 1881. It is made the duty of the auditor when the fund is paid into the State treasury to loan the principal,

The State, ex rel. Robinson, v. Carr, Auditor of State.

the annual interest to be applied to the current expenses of the university, upon warrants drawn by the auditor upon the treasurer of state, ou the requisition of the board of trustees of the university. The manner of making the loans and the character of the security to be taken are particularly prescribed. Section 4600, R. S. 1881, provides that, "The rate of interest required shall be seven per cent, in advance, payable annually."

The later act of 1879, section 5205, R. S. 1881, provides that, "All acts on the subject of interest, including such as relate to interest on public funds, interest on purchasemoney of canal, college, school, or saline lands, are hereby repealed; and, hereafter, the interest on public funds, purchase-money of canal, college, school, or saline lauds, and upon the permanent school fund, shall be at the rate of eight dollars a year on one hundred dollars."

It became a question in the mind of the auditor of state, as to whether the act of 1879, above set out, did not by implication repeal section 4600, so as to make it his duty to decline to make any loan of the university fund at a less rate of interest than eight per cent.

It will be observed, that it is the interest on "public funds, purchase-money of canal, college, school and saline lands, and upon the permanent school fund," that is fixed at eight per cent. The fund designated in section 4595 as the university fund, is not among those specifically enumerated. Unless, therefore, that fund is embraced by the phrase "public funds," it would seem to be clear that it is not affected by section 5205. In our opinion it is not a public fund within the meaning of that section.

The university, although established by public law, and endowed and supported by the State, is not a public corporation in a technical sense. In the language of the court, in Regents of the University of Maryland v. Williams, 9 Gill & Johns. 365, 388; "A corporation may be private, and yet the act or charter of incorporation contain provisions of a

« AnteriorContinuar »