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Bunch v. Grave et al.

to pay the encumbrances which rested upon the lands of both. When he paid them, he simply discharged his own primary obligation, out of a fund which he held for thebenefit of himself and Mrs. Bunch. Sanders v. Weelburg, 107 Ind. 266.

Does the fact that Mrs. Bunch subsequently, under a misconception of her legal rights, obtained an order from the court requiring appellee Grave to proceed to sell his land, estop her from now asserting her rights as we have shown them to be? It can not be deemed that the order thus obtained has in any way enlarged the rights of Grave, or deprived theappellant of her equitable remedy.

She is not in the situation of a party who, having two inconsistent remedies, resorts to one, and is thereby concluded by her election. She had but one effectual legal or equitable remedy, and that was to have it adjudged that the decrees held by Grave were satisfied. A party who imagines he has two or more remedies, or who misconceives his rights, is not to be deprived of all remedy because he first tries a wrong one. Kelsey v. Murphy, 26 Pa. St. 78 (83); Morris v. Rexford, 18 N. Y. 552; Lee v. Templeton, 73 Ind. 315.

When Mrs. Bunch instituted her proceeding in the first instance, the appellee was wrongfully asserting his purpose to enforce the decrees, which were extinguished, to her prejudice. Her proceeding was a misadventure. It proved unavailing, because of the delay successfully interposed by her adversary. It has not, however, deprived her of the relief to which, upon the facts, she is equitably entitled. That proceeding has affected no right of the appejlee. He could have ended the litigation long ago by giving over his purpose to perpetrate a wrong upon the appellant. The justice to which she was entitled from the beginning, and which has been too long delayed, ought not be wholly denied because she mistook her remedy in the first instance.

The complaint sets forth many facts that are wholly immaterial, but it also states facts which entitle the appellant toBartley v. The State.

have the mortgages cancelled as to her land. It was there-
fore error to sustain the demurrer to her complaint, and for
this error the judgment is reversed, with costs.
Filed J uoe 22, 1887.

Ill 358

116 457 123 130

111 358 137 539

111 3as|

Hi H No. 13,834.

Bartley V. The State.

Criminal Law.BUI of Exceptions. Agreement by Prosecuting Attorney
Extending Time of Filing.—An agreement by the prosecuting attorney
extending the time for filing a bill of exceptions beyond the statutory
limit of sixty days allowed by the court (section 1847, R. S. 1881), is
without authority, and a bill thereafter filed is not properly in the
record, and presents no question.

From the Noble Circuit Court.
L. W. Wether, for appellant.

L. T. Michener, Attorney General, and J. H. Gillett, for the State.

Niblack, J.—Bartley, the appellant, was, at the March term, 1886, of the Noble Circuit Court, indicted for selling intoxicating liquor to one Albert Miller, a person under the age of twenty-one years.

At the succeeding December term, a jury found the appellant to be guilty as charged, and he was adjudged to pay a fine of twenty dollars and the costs of the prosecution.

It is complained only that the verdict was not sustained by sufficient evidence, and that the court erred in its instructions to the jury.

On the twenty-first judicial day of said December term, which was the 29th day of December, 1886, and the day on which judgment was rendered on the verdict, sixty days time was given to the appellant within which to prepare, and Bartley r. The State.

have signed, and to file his bill of exceptions containing the evidence, as well as the instructions given at the trial.

On the 23d day of February, 1887, the prosecuting attorney of the proper judicial circuit consented in writing that the time for preparing, signing and filing a bill of exceptions in the cause should be extended until the 15th day of April, 1887, and agreed to waive all irregularities which might result from such extension of time.

The bill of exceptions which we find copied into the record, and which purports to contain all the evidence and all the instruction given in the cause, i.s certified to us as having been filed on the 12th day of April, 1887. The attorney general makes the point that the prosecuting attorney had no power to extend the time for the filing of the bill of exceptions; that, consequently, his agreement to extend the time, as stated, was ineffectual to extend it, and that, for that reason, the bill of exceptions was not filed within the time limited by law, and has hence not been properly made a part of the record.

Section 1847, R. S. 1881, which constitutes a part of our present criminal code, is as follows: "All bills of exceptions, in a criminal prosecution, must be made out and presented to the judge at the time of the trial, or within such time thereafter as the judge may allow, not exceeding sixty days from the time judgment is rendered; and they must be signed by the judge and filed by the clerk."

The power of the court, therefore, to extend the lime within which a bill of exceptions may be filed, after the close of the term, is, in a criminal cause, limited to sixty clays after the judgment is rendered. A prosecuting attorney may, when further appearing in a criminal cause, withhold any objection to a bill of exceptions on account of its not having been filed in time, but he has no power to fix the time in the first instance, or to extend the time after it has been fixed by the court, and, consequently, can not enter into any agreement concerning such extension of time which Whetton el al. v. Clayton et al.

would be binding upon any other person or tribunal. If

he has the power to extend the time beyond the statutory limit of sixty days, he has, in that respect, an authority greater than is conferred upon the court, and no such claim of authority on his part either has been, or will be, asserted. The rule to be observed in making out and filing bills of exceptions in criminal causes, is less elastic, and has been, and still is not so liberal as that prescribed in civil cases. Buskirk Pr., 147, 420; R. S. 1881, section 629.

It follows that the bill of exceptions in this case was not filed in time, and that, in consequence, no question is presented in this court either upon the evidence or the instructions.

The judgment is affirmed, with costs.
Filed June 23, 1887.

No. 12,459.

Whettox Et Al. V. Clayton Et Al.

Highway.Proceeding to Vacate.Evidence.—In a proceeding to vacate a. public highway it is not error to exclude testimony to the effect that certain individuals had offered to construct a foot-bridge over a stream which crossed such highway.

Same.Best Evidence.—In such proceeding an order of vacation theretofore made by the board of commissioners can not be proved by parol, in the absence of any reason shown for the attempted resort to secondary evidence.

Supreme Court.Practice.Instruction*.Motion for New Trial.Record.— Instructions can not be made part of the record by copying them into the motion for a new trial.

From the Elkhart Circuit Court.

A. S. Zook, D. Zoolc and W. H. H. Dennis, for appellants. J. H. Baker, F. E. Baker and S. J. North, for appellees.

Elliott, J.—This is an appeal from an order refusing to vacate a public way.

Groscop i). Rainier el aL

It is contended by the appellants that the trial court erred in refusing to permit them to prove that private persons had offered to construct a foot-bridge across a stream which crosses the highway. There was no error in this. A highway is a very different tiling from a mere private way built or maintained by private individuals. The public and individuals have very different rights respecting it from those which they have in a private way. It is not proper to prove what individuals will do, where the question is whether a public way shall be laid out, or whether one already opened shall be maintained.

There was no error in refusing to permit the appellants to prove by parol when an order of vacation was made. That could only be proved by the record. There may be cases where parol evidence is admissible, but this is not one of them, for there was no reason shown, or attempted to be shown, justifying a resort to secondary evidence.

We think that there were such pleadings as entitled the appellees to have the evidence given by them considered by the jury,and that there was no error in overruling the motion to exclude it.

Instructions can not be made part of the record by copying them into the motion for a new trial. Judgment affirmed. Filed June 28, 1887.

No. 12,735.

Groscop V. Rainier Et Al.

Ihtoxicattng Liquor.Remonstrance.Immorality.— Immorality on thepart of the applicant, which may be made the basis of a remonstrance against the granting of a license to retail intoxicating liquors, under the act of March 17th, 1875, is not limited to such immorality as is. specified in that act.

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