The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1896-04-14

that this action was collusively commenced
and prosecuted, but fail TO deny any or the
material facts set forth in the afhdayit In
support of the motion.
Indeed, the chage of COLLISION Is greatly
aided and strengthened by appellants am
mon purpose OF all the parties 10 the suit,
but that the parties were manufactured 10
order by the direction OF the client Of learned
the face OF the paper to represent Brayton,
but who confess in their statement that they
Brayton Is not a member. and this is supple
mented by the sworn statement that Bray
ton was selected as plaintiff either by them
or some one else In behalf or their true ana
genuine client.
.The only allegation OF fact in Mr.. Hollis
affidavit. which is denied by the affidavit OF
appellants. y that which charges that there
was no argument In the lower court upon
the question presented by the demurrer 10
the complaint. Appellants deny this state
ment and not only affirm that there was an
argument, but give the court specific infor-
nation as to what the argument was.
1T is very gravely and very GRAPHICALLY ,hah,,
was discussed by the counsel for both par
ties. and the court was referred by counsei
for the plaintiff TO the decision OF this court
in the cases of Denny VS.. State ex rel. Beas-
~ and Parker vs. State ex rel. Powell, and
the facts stated in the complaint showing,
as was claimed by said counsel, that the
case presented thereby was within the prin-
ciples of those cases. were pointed out. The
court was also supplied with the official copies
iative superintendent made In the years 1888,
1889 and 1895. in the view that as such enum-
erations were matters Of which the court
took judicial notice, il was necessary for the
court to have them, in order TO know that
the facts stated in the complaint IN relation
thereto were true
MR.. KERN's IRONY.
"And this was the argument: II Is for
tunate that we have an authentic and verified
report Of this bitterly contested case in the
Marion Superior Court. The counsel for a
committee. not party to the suit referred
the court to the Denny case and the Parker
case. and the facts stated in the complaint
were pointed out
Here the attorney for the committee sat
down, doubtless overcome with his tremen-
dous effort, and the attorney for Mr.. Fesler
slowly and impresSively arose. A profound
and painful silence prevailed. The learned
judge upon the bench leans slightly forward
and the excited spectators crane their neckS,
anxious lest they lose a word OF the speech
with which the counselor is pregnant. With
t5 bs ne bse
worthy of the steel of opposing counsel.
After calmly, but firmly, presenting TO
the court officials copies 9th, Of the s enumera-
tionment made in the years 1888, 1889 and 1885,
and with ill-concealed emotion explaining
was taken in order that the court might
know that the facts stated in the complaint
were true, this champion OF the law of 1885,
with an air of exultation over his now thor
seat, and the two excited lawyers sat and
glowered at each other. OF course the
les OF the enumerations that he might salts
fy himself that the allegations or the COM
plant were true.
I'm ordinary cases, 1t must be conceded.
the demurrer admits the truth OF the allega-
ton of the complaint, and courts do not
receive evidence in support OF the complaint
before ruling upon the demurrer, but In this
case the contest was so bitterly waged and
much Ill feeling had been ensendered be-
tween the partisans Of Brayton on the one
hand, and Fesler on the other, to say moth
ing OF the bad blood between the opposing
lawyers, that the court was doubtless Justi-
fed in departing from the usual practice and
taking the proffered evidence.
THE exigencies of the case demand rul-
ing by the following morning and the
learned judge doubtless spent a sieepless
night wading through the three great tables
OF official enumeration, verifying therefrom
the mathematical calculations of the COM
plant, in order that he might be thorougnly
demurrer that the allegations were true.
1.-The appellant, Fesler, in his affidavit ION
page 81 states upon his oath that each and
every fact stated in the complaint filed in
said cause and now appearing in the trans
cript thereof was and is true as therein
stated
with this new departure in practice In this
tribunal. Occasions are indeed rare when an
appellant who, in good faith in prosecut-
ing an appeal, voluntarily comes before this
court and makes a sworn statement that
every allegation of his adversary's pleading
is true but Mr.. Fesler doubtless justifes
this course and bases his sworn statement
upon the facts that the court below adjudi-
Gated the question as to the truth or the com
plant, for was not evidence submitted TO
him that he might be satisfied of its truth
before passing upon the demurrer?
Seriously, is any further proof needed OF
the collusive character of the action than is
furnished by appellants affidavit? 1t shows
first by tacit admission, that the defendant,
Fesler, procures the service Of the plaintiff
who is represented by attorneys here, who
declares that he is not their client; second,
IL Is shown on every page and between all
the lines that the appellants are even more
DESTROYS than the nominal appellee that the
Judgment from which they have appealed
be affirmed; third Ii shows with great clear
ness the methods resorted to to make up a
case for this court; fourth, 1t described with
yividness the roaring farce enacted before
the lower courts-the sham battle between
Damon and Pythias, and fifth. and properly
Gaping the climax of all this burlesque act
ing 1T shows the appellant in this court
swearing to the truth of the appellee's claim
while in the same sentence asseverating that
this is not collusive suit.