The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1901-02-11

OF Justice being done under the strict rules
enforced in the courts of law. While II
has been decided by our Supreme Court
that parties are not entitled to a trial py
jury in suits OF an equitable character,
when appealed they are reviewed IN the
same manner as actions at law and. *
error is found in the record, are remanded
for a new trial. If in this class OF cases
a rehear.ng was had on appeals as under
the chancery practice. and the decree In
the lower court modified il found incor-
rect, an end would be put to second APP
reals and the lower, as well as the Su-
preme Court, relieved of a great deal OF
are so intricate that it is impossible to
try them without error creeping into the
record. 1 recall a partition suit, which 1
think is still pending in the Superior Court
of Marion county, in which the interests
are so confused that I doubt If either judge
or jury could determine the same, to the
complete satisfaction OF any court or re-
view. The case / have in mind has been
&c the Supreme Court and was reversed
without a shadow of light being thrown on
the questions in controversy. There is a
probability that the case may occupy the
attention of the courts until all of the par
ties have passed away, half having al
ready departed 1t is this never.ending
with the people The only reason for re-
handing ar action at law for a new trial
Is that the parties may not be deprived OF
jury; but why should suits in equity and
actions at law, where the parties nave
waived 2 jury, be sent back to the lower
CT urt instead of being finally determined
by the Supreme Court?
There is another imperfection in our
practice which ought to be remedied; and
/ do not call attention to 1t for the pur-
pose of expressing a single word OF crftf-
cism Of the members of the Supreme Court,
but of the methods they are compelled to
Iursue to meet the demands OF a public
sentiment which exacts from them results
they could not otherwise produce. Unless q
case appealed is presented by an oral ar
gument to the full bench, the appellant Is
not likely to get the opinion of more than
a single judge. But one copy OF the tran
script, and that in the most voluminous
form, is filed in the Supreme Court, hence
IL is impossible for all the members of the
court to familiarize themselves with the
questions involved. The record Is placed
in the hands of one of them, who states
the case and prepares an opinion. Now, If
for any cause the questions involved are
not clearly and correctly stated, the
opinion, though a correct exposition of
the law, will be just as harmful to the
party as If erroneous. l recall a case de-
cided by a former court, where the real
point, upon which the appeal was taken,
was not touched in the statement of the
questions involved or in the opinion de-
livered, by the unanimous approval of the
judges. 1t was a suit in partition by a
wife to nave her one-third set off Of lands
a mortgage. executed by her husband, after
the passage of the act of 1875. In the suit
the defendant, the MORTGAGE, set up as a
&c al k1dL LIC lAOA SCI ~
him was given in renewal of a mortgage,
by the husband. prior to the passage of the
act Of 1916. The opinion of the court states
the question to be, whether the inchoate-in-
terest of the wife became vested upon the
divesting of the title of the husband upon
the foreclosure of a mortgage executed
after the passage OF the act OF 1919, in re-
newal of one executed before that time,
The court properly held that, upon sucn
a state of facts, her interest was contin-
gent upon her survival. The trouble was,
chat thfC uraG mot tho Tnfnf in tho QaCa
The facts were that the mortgagee had fore
closed his second mortgage without max
ing the wife a party TO the suit: without
lad been given in renewal of one exc
cuted prior to the passage OF the act OF
1915. had taken a decree for the sale OF
only two-thfrds of the premises, and at the
sale, had bought In and, at the expira-
ten OF the time for redemI ton, taken title
To only two-thfrds-- Now the question for
the court TO have determined was not the
one stated and decided but whether the
| mortgages, after having failed TO make the
wife a party to his suit OF foreclosure,
after having failed 10 disclose the fact
that his lien, in equity, was of a date
| prior TO the passage OF the act of 1875. after
having taken a decree for the sale of only
| two-thirds OF the premises; and after hav-
ing bought in and taken a deed for only
two-thirds was entitled to the whole OF
tho property.
| demonstrate the great Importance Of get
ting a case before all the member of the
| court and of having the point discussed be.
fore the record is delivered into the hands
OF one for a decision. This cannot be done
| SO long as a single transcript In the most
voluminous form, as all that is provided
fo- the use of the judges. The transcripts
new required are entirely Too lengthy
and should be reduced. The parties should
be required, after a transcript has beer
| fled. 10 abstract the same, giving the evil.
deEce in narrative form. and when SO az
! stracted, TO print and file a sufficient mum
Der of copies TO meet the requirements
fer ali purposes. A number Oh States have
| adopted this reform. and l am told tha'
| transcripts on appeal In the English eourti
) are nothing more than brief statements