The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1895-09-25
OLD PRACTICE VOID
SUPREME COURT SURPRISES THE
LAWYERS BY ITS RULING.
Notices of Appeal Must Not BE Di-
rected TO Attorneys-Tate-Lov
Tragedy Recalled.

Attorneys who have recently appealed
cases to the Supreme and Appellate courts
under that provision of the statute which
provides for the issuing of notice of APP
peal by the clerk of those courts are like
~ to have their appeals dismissed under
the ruling made yesterday by the Supreme
Court in the case of Tate against Church
man and others, holding that the practice,
which has been pursued withcgt muir
muir of dissent for forty years, is wholly
unlawful and absolutely without force in
giving those courts jurisdiction over fp-
pellees.
The case in which the ruling was made
is itself an interesting one In its various
phases it has been in the courts for TWEEN
ty years The number of lawyers who
have represented the parties has been un-
usually large, even for case occupying
so great length of time-a fact attribu-
table to the financial Importance of the
litigation and the character of the par
ties to the action. Early in the seventies
Jacob T. Wright and Carln Hamlin. VINO
at that time were prominent operators in
real estate in Indianapolis, purchased from
Jacob Dunn and William Love, who under
the firm name of Love e. Dunn, we're also
leading real-estate men, large farm on
White river in Washington township. The
consideration was about $4,000. The pur-
chase money was paid in part by promis-
sorry notes. After all the notes but one
had been paid the panic caught Wright az
Hamlin, and they were unable to meet
their paper. The unpaid note meantime
had been assigned by Love & Dunn TO
Warren Tate, and was one of series of
transactions between those gentlemen
which finally terminated in the sensational
uh Ia
ridor of the courthouse. In his action TO
foreclose Tate was given judgment by
Judge Elliott: WHO was then presiding IN
with a decree foreclosing the mortgage as
first lien upon the real estate. Some
time after the judgment and decree were
had been materially altered after its ex-
ecution. Hamlin & Wright thereuopn
asked to nave the judgment and decree set
aside, alleging that the note was fraud
and forgery, and that they did not know
that fact in time to urge 1t as defense
to the action. Fletcher & churchman.
application to the court TO be relieved
from the judgment for reasons similar TO
those stated by Hamlin & Wright.
Judge Elliott sustained the application
as TO Fletcher & Churchman. holding that.
inasmuch as they were not parties TO the
note. they could not be presumed to know
its contents, but at the same time he ruled
agains Hamlin &Wright. holding that their
neglect to bring the matter to the courts
attention was inexcusable inaSmuch as
they had av MADE the nSse and xney or
were. From the decree granting relief TO
Fletcher & Churchman Tate appealed to
the Supreme Court: which affirmed Judge
lowing were occupied in making up the is
sues subsequent to the decision of the
supreme Court, and in 1889 Tate was again
defeated in the Supreme Court His case
was then appealed to the general term OF
the Superior Court, where ii was pending
when the last Legislature abolished APP
peals to that tribunal
On May Tates attorneys. Capt. 5 NJ.
Shepard and Messrs. MCCULLOUGH & Span,
filed in the office of the Clerk of the SUI
prerne Court a transcript OF the record
and assignment of errors and caused the
Clerk TO issue a notice directed to the
,appellees or their attorneys, naming them.
The notice was served by the sheriff of
the county on some of the many attorneys,
who had, at one time. been in the case,
but none of those served had represented
the appelees for the last five years On
the return of this notice the case was
submitted to the court for decision.
AT this point w. V. Rocker, entering
special appearance for the appellees, moved
to dismiss the appeal for want of notice,
the time having passed in which notice
could be served under the statute The
grounds for the motion were want of
Jurisdiction over the appellees. 1t was on
this motion that the court made its ruling
yesterday. II holds that the clerk of the
Supreme Court has no right to issue
but he must issue it only to the appellees.
The court calls attention in its ruling to
the plain provisions of the statute, and
also To the fact that for forty years no
person had called attention to it, also to
the error in the practice and holds that
all notices SO issued are invalid when
served upon the attorneys, and conferred
no jurisdiction on the court. A great
many of the appeals taken in recent years
have been upon notices issued by the
clerk of the court, and universally the
practice has been to insert in the notice
the names of the attorneys of record. The
sheriffs of the counties have found 1t
more convenient to serve the attorneys
than to serve the parties, and the res.Jt
is that large majority OF cases have
been so appealed that the court was really
without Jurisdiction until the appelees
voluntarily appeared and submitted their
cause tc the court for decision. II is
probable that motions to dismiss will be
filed in all cases in the Supreme and APP
pellate courts where the notice was issued
and served as in this case.