The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1897-01-27

IN inc matter OF the alleged claim of the
state against the Vandalia Railroad COM
pany the State would have a better stand
ms in court if it had not slept so lone on
its alleged rights. and. IN one instance NJ
ieast' shown SO little energy in pushing
them. The claim natured nearly twentv-
hve years ago and during that period
LeClS azure after Legislature has ther re-
luseC to take any action in the premises
or has winked at the %stTangiing of bills
and resolutions locking to that erd. once
when the matter seemed to bo an,roaob
irg a final adjudication the sui of tho
t-2te failed aad was turned out OF the ST.
prone Court b. reason Of neglect or bad
management on the part Of its counsel
This was in 1S-2. In 1876 suit had been
brought against the company in TIE ST.
porior Court Of this county and decided in
It's favor at the general term on a de-
n,urrer TO the complaint. The State took
an appeal to the Supreme Court. where il
was REPRESENTED BY G. A. Buskirk. J. o
Denny, ". T.. Harrison. s. Claypool w
A ketcham and J. L. Mitchell. The Sill
preme Court affirmed tho decision of the
lower court because no assignment of error
had been made at the general term oe the
Superior Court. or if any were made it did
lot appear in the record. Counse fer the
State moved to be relieved from the judg-
ment Of the Supreme Court or for q re-
hearing. on the ground of mistake. mad
vertence. surprise ard oxcusable neglect
IN support or the motion aridavits were
Med by two of the States counsel tending
TO show that they lad been taken by sur
prise by alleged variance between the
transcript as made out by the clerk of the
Superior Court and as fled in the Supreme
Court In overTuling the motion for a re-
hearing the Supreme Court said:
The transcript in this case was filed
IN TINS court, and the cause submitted by
agieement. on the 18th day of November.
1876. The briefs. which were those used at
the hearing of the case in general term
below. were filed in this court on the 18th
OF January. 1871. since which date to the
10Th day of November. 1878. the day upon
which the case was decided by this court.
II does not appear that the counsel for the
appellant had taken any action in the
case. Thus IL appears that two years
elapsed from the time the appeal was
taken to this court, before the final de-
cision of the case. How the fact that the
exhibits and demurrer to the complaint
before the transcript was made. and that
the clerk did not inform them of any other
defect, were calculated. to create or did
create an impression in the minds of the
counsel that the transcript was correct
after the missing papers were supplied. is
not apparent TO Us. 1t would rather seem
that it ought to have awakened their at
%tention to the fact that the transcript
might be imperfect in some other respect.
: . 8 Notwithstanding all that is stated
in the affidavits. the fact appears plain to
us that the counsel. from the time the ap-
peal was taken until after the final de-
ciSiOn was made--a period of two years
did not eXamine the transcript to see that
it was correct: indeed. ii does not appear
that they ever examined it at all; for. il
they had. the diminution being so palpa-
bic. and i'm so material a part. they GER
does not appear to us that such a state
of facts could fairly be called. within the
range Of sound judicial discretion. a mis-
take. iradvertence. surprise or excusable
neglect indeed. we very much fear that
an exercise of our discretion. holding such
a state of facts sufficient, would amount
to abuse.
For these reasons the Supreme Court de-
MED a rehearing and affirmed the decision
Of the court below on account of deficit in
the record. without discussing the ques-
ton of law involved in the demurrer at all.
Thus. what the Supreme Court evidently
regarded as inexcusable neglect on the part
of the States counsel was responsible for
the failure Of one of it's suits instituted
by the State to enforce this long disputed
claim. The further loss of nearly twenty
years since this failure makes i all the
more important that If the State j ever
going to do anything in the premises it
should begin at once.