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The State, ex rel. Steigerwald, V. Thomas.
it was not known to either when the order was made that he would be called as a witness.
As it is affirmatively shown that Johnson's presence was not by the procurement or connivance of the relatrix, nor attributable to any fault or neglect on her part or that of her counsel, the trial court erred in refusing to permit him to testify. It has been expressly decided in two recent cases, that where the party is entirely free from fault, the testimony of a witness who disobeys an order of the court can not be excluded. Davis v. Byrd, 94 Ind. 525; Burk v. Andis, 98 Ind. 59.
In the first of these cases the question was closely examined and many authorities cited. We there said: "We hold the true rule to be this: Where a party is without fault, and a witness disobeys an order directing a separation of witnesses, the party shall not be denied the right of having the witness testify, but the conduct of the witness may go to the jury upon the question of his credibility." We quoted from eminent text-writers like expressions of the rule, and cited the decisions of many courts. Our conclusion on a second examination of the question is, that the English author there referred to was right in saying: "But it seems to be now settled, that the judge has no right to reject the witness on this ground, however much his wilful disobedience of the order may lessen the value of his evidence." 2 Taylor Ev. 1210.
In another text-book a very thorough review of the authorities was made, and it was said: "But it may now be considered as settled, that the circumstance of a witness having remained in court in disobedience to an order of withdrawal, is not a ground for rejecting his evidence, and that it merely affords matter of observation." 2 Phill. Ev. (5 Am. ed.) 744.
Mr. Bishop, with his usual vigor, thus states the doctrine: "On the other hand, if the party was without fault, the judge The State, ex reL Steigerwald, r. Thomas.
has no right to punish his innocence by depriving him of his evidence, and ruin him at the will of a witness. The testimony should be admitted, subject to observation to the jury. Such is the law in principle." 1 Bishop Crim. Proc, section 1191.
It is insisted by appellee's counsel that a new trial will not be granted although competent impeaching testimony offered on the trial is excluded, and in support of this position they refer to the cases of Porter v. State, 2 Ind. 435, State, ex rel., v. Clark, 16 Ind. 97, and Jackson v. Sharpe, 29 Ind. 167. These cases give them no support whatever, for they merely decide that newly discovered impeaching testimony will not entitle the party to a new trial, and there is no such question here. We regard it as quite well settled, that where competent impeaching testimony is properly and seasonably offered on the trial, it is error to exclude it, and that principle rules here. Nor does the fact that other impeaching testimony was given, deprive a party of additional testimony on the same subject, although it may be that in some cases a limit may be put upon the number of witnesses that may be called to that question. But there was no limit fixed here, and there is no question of that kind made. The single question is, was it right to exclude Johnson's testimony because he had heard other witnesses testify?
The relatrix was not bound to state what she expected to prove by Johnson, because the question is not as to the competency of his testimony, but as to his right to testify at all. The rule is thus stated in Sutherland v. Hankins, 56 Ind. 343 (355): "But where, as in this case, the matter complained of is the action of the court, in refusing to permit a witness to testify at all, the grounds of objection to the witness must be shown by a bill of exceptions, and this is all that need be shown in order to present the matter for our consideration." Shimer v. Butler University, 87 Ind. 218.
We can not say that the relatrix was not prejudiced by the Pursel v. The State, ex ret Roney. Pureel v. The State, ex rel. Roney.
refusal of the court to permit Johnson to testify, and the judgment can not be sustained.
Filed Sept. 20, 1887.
Pursel v. The State, Ex Rel. Roney.
Office And Officer.—County Surveyor.—Term of Office.—Estoppel—P. was elected county surveyor at the general election in November, 1884, and took possession of the office on the 21st of the same month. At the November election, 1886, R. was elected to the same office, and on the 22d of that month demanded of P. the office, with the property belonging thereto, which the latter refused to surrender. In a quo warranto proceeding against P.,
Held, that having filled the office for the full term prescribed by the Constitution, he is, as against his regularly elected and qualified successor, estopped from denying that his term of office has expired.
From the Starke Circuit Court.
G. W. Beemnn and N. L. Agnew, for appellant.
A. I. Gould and G. A. Murphy, for appellee.
Niblack, J.—This was an information in the nature of a quo warranto prosecuted in the name of the State, on the relation of Henry C. Roney, against Abner L. Pursel, for the purpose of obtaining possession of the office of county surveyor, together with the records, charts and other property pertaining to the office.
The court made a special finding of the facts to the effect that, at the November election, in 1884, the appellant, Pursel, was elected surveyor for the county of Starke; that, after having been duly commissioned and qualified, he, on the 21st day of said month of November, 1884, entered into the possession of said office, and had ever since continued to dis
charge its duties; that, at the November election in the year 1886, the relator, Rouey, was elected to the same office, and having been first commissioned and otherwise lawfully qualified, he, on the 22d day of said month of November, 1886, demanded of Pursel the possession of the office, together with the records, charts and other property pertaining thereto; that Pursel refused to surrender the possession of the office, or of anything belonging to the same, and had since continued in the possession thereof, as well as in the discharge of its duties.
The court, thereupon, as a conclusion of law, held that Pursel's term of office had expired on the 21st day of November, 1886, and that the relator, Roney, had become entitled to the possession of the office, together with the records, charts and all other things belonging to it, and, over exceptions and a motion for judgment in favor of Pursel, entered judgment accordingly.
The contention of Pursel is, that applying certain pertinent provisions of the Constitution and laws of this State to the facts as found by the court, his term of office does not expire until the first Monday in November, 1887, and that, consequently, the court erred in holding otherwise as hereinabove stated.
The second section of article 6 of the Constitution provides for the election of a county surveyor for each county, by the qualified voters, who shall continue in office for the term of two years. The act of June 17th, 1852, which went into effect on the 6th day of May, 1853, and was designed to carry this constitutional provision into effect, directed that county surveyors should thereafter be elected at the general elections in the several counties of the State, who should hold their offices for two years from the first Monday in November, next succeeding their election. 1 G. & H. 595; R. S. 1881, section 5948. At that time the general elections were holden annually on the second Tuesday in October, and continued to be holden on that day, either annually or biennially, until Pursel t>. The State, ex reL Koney.
the year 1881, when, by an amendment to the Constitution, the time of holding general elections was changed to the first Tuesday after the first Monday in November.
On Pursel's behalf the construction insisted upon is, that as Roney was not elected until after the first Monday in November, 1886, his term does not begin until the first Monday of the succeeding November, which meaus the first Monday in November, 1887, and that, under the holding-over clauses of the Constitution and of the statutes, Pursel is entitled to continue in office until Roney's term thus begins.
Section 9 of the sixth article of the Constitution, to which reference has been made, ordains that "Vacancies in county, township, and town offices shall be filled in such manner as may be prescribed by law." Acting under that provision, the Legislature has prescribed that all vacancies in county offices shall be filled by the board of commissioners of the proper counties respectively, and that an appointment to fill such a vacancy shall expire when a successor is elected, and that such successor shall be elected at the next general election. R. S. 1881, section 5563; Governor v. Nelson, 6 Ind. 496.
In the case of Griebel v. State, ex reL, ante, p. 369, the doctrine that the term of an officer fixed by the Constitution can neither be abridged nor extended by a statutory enactment, was fully considered and reaffirmed. It was also then held that, under the operation of the several constitutional provisions and statutes having a bearing on the subject, there was not, and could not be made to be, any uniformity in the several counties of the State as to the time at which persons elected to county offices of the same class shall be entitled to enter upon their duties, where the duration of the term is prescribed by the Constitution. This results from intervening vacancies, and other incidental causes, which fix the times of the beginning, as well as the ending, of particular terms of such offices at different intervals, under the operation of