Niblack v. Goodman

*191On petition eor a rehearing.

Howk, J.

After this cause was decided by this court, at the last term thereof, and within the time allowed by law, the appellee filed and presented an earnest petition for a rehearing of the case,' and an able and exhaustive brief in support of his petition. The petition has not. been and will not be granted, but the cause has been fully reheard, and by oral arguments, continuing through several days, and by elaborate briefs and additional briefs, the learned counsel of the respective parties have fully presented and discussed every material question involved in the record of this action.

From the arguments and briefs of counsel, we are advised that it is the wish of both the parties to this suit, that this court should consider, pass upon and decide each and all the questions arising in or presented by the record of this cause. This we will endeavor to do ; but we may properly remark, in limine, that we adhere to the original opinion, filed in this cause on the 24th day of June, 1879, at the last term of this court, and to the views expressed therein, save as the same may be modified in this opinion. We may further remark at the outset, that, in considering the several questions in this case, we shall not be governed by the order adopted by the appellant in his assignment of -errors, but we-will take up and decide these questions, in their chronological order, that, is, in'the order of time in which they apparently or probably originated.

1. The first question which presents itself for decision in regard to this case is this : When was this suit commenced? In considering this question in our original opinion in this case, we have said, “there would seem to be no controversy between the-parties as to the facts of the case ; but the controversy is, as to the legal effect- of those facts, and the law applicable thereto.” It appears from *192the record of this cause, that on the 11th day of January, 1875, Charles Goodman filed in the court below, for its February term, 1875, a complaint against the administratrix and the assignees, naming them, respectively, of Albert G. Slooj deceased, counting upon the same judgment which is sued on in this action. When this complaint was filed, as we have seen, the case was apparently placed at once upon the issue docket of the court, for issue and trial.

The action had upon this complaint and the final disposition thereof have already been fully stated, and need not be repeated. After some delay, the appellee took the same complaint, and, having struck out and erased therefrom the names of said assignees and all matters relating to them, on the 3d day of March, 1876, caused the same to be entered upon the appearance docket of the court. That action of the appellee was the origin and commencement of this suit, as we have already shown, if sections 65 and 66 of the act providing for the settlement of decedents’ estates, approved June 17th, 1852, as amended by an act approved February '20th, 1855, were legal and valid enactments.

But if, as the appellee’s counsel insist, these amended sections, under the decisions of this court, were illegal and void enactments, as attempted amendments of sections which had at the time been amended out of existence by an act approved March 4th, 1853, and if, as counsel claim, by force of the repealing act approved March 9th, 1867, Acts 1867, p. 204, the amended sections of March 4th, 1853, were repealed, and sections 65 and 66, as originally enacted in the act of June 17th, 1852, were revived and are now in force, as the only law of this State on the subject-matter of those two sections, then the question still remains for decision : When was this suit commenced ?

It is claimed by the'appellee’s attorneys that, under the original sections 65 and 66 of the act of June 17th, 1852, *193for the settlement of decedents’ estates, the complaint filed by Charles Goodman, in the court below, against the administratrix and the assignees of Albert G. Sloo, de-, ceased, must he regarded as a pending claim or suit against the decedent’s estate, from the time of the filing of said complaint, on the 11th clay of January, 1875 ; and that, notwithstanding the action had on said complaint by the court and the parties, it continued to be a pending suit, and was and is this suit, against said decedent’s estate.

It seems to ns that this claim or position of the appellee’s counsel can not be maintained. It is very clear, we think, that neither the appellee nor his attorneys were governed, nor did they intend to he governed, either in the institution or prosecution of their original suit against the administratrix and the assignees of the decedent, or in the institution or prosecution of this suit against the administrator alone of said decedent, by any of the provisions of the original sections 65 and 66 of the decedents’ estates act. This is manifest throughout the, record, as it seems to us, down to and during the trial of the cause. Indeed, the record clearly shows that this suit was commenced, prosecuted and finally tried, under and in accordance with the provisions of the amended sections 65 and 66, as they were attempted to he amended in and by the act of February 20th, 1855.

It is claimed by the appellee, and such was the testimony of one of his attorneys on the trial of this cause, that when his complaint against the administratrix and assignees of the decedent was filed in the court below, the clerk thereof was directed by his attorneys to enter said complaint as a claim against the decedent’s estate, upon the appearance docket of the court. The record fails to show that this was done, but ou the contrary it does show that the complaint was placed ■ upon the issue docket as a civil action, and not as a claim, for issue and trial.. *194Whatever may have been the original instructions of the appellee or of his counsel to the clerk in regard to said complaint, the record shows that the appellee adopted the action of the clerk in placing the case upon the issue docket, and continued the cause for the service of process on the defendants named in said complaint. After process had been served in the suit then pending, on the administratrix of said Albert G. Sloo, deceased, she appeared fully therein by her counsel, and moved the court to strike the cause from the docket, which motion was sustained by the court, and the cause was stricken from the docket.

That action of the court was, we think, an end of that case for all purposes; and it can make no possible difference what law was in force. The appellee’s suit or complaint was not and could not be, either under the original sections 65 and 66, or the attempted amendments thereof, a pending suit or claim against the decedent’s estate, until it had been renewed and commenced again in some form. The record fails to show that any steps were taken, under any law, either by the appellee or by any one else, to get the administrator of the decedent before the court to answer the amended claim or complaint of the appellee, until he procured the same to be entered on the appearance docket of the court, on the 3d day of March, 1876. Even then there was no attempt on the part of the appellee, or of his attorneys, or of any one else, to institute this suit orto prosecute it, under and in accordance with the provisions and requirements of the original sectious 65 and 66 of the decedents’ estates act. So that, if these original sections 65 and 66 must be regarded as the law of this State in full force on the subject-matter thereof, and if the amended sections 65 and 66 of the act of February 20th, 1855, which have been acted upon and recognized as law by all the courts of this State for nearly twenty-five years, must be regarded as we think they must, under the decision of this *195court, as illegal and void, still it is certain, as it seems to us from the record of this cause, that the appellee never commenced, nor intended to commence, his suit against the decedent’s estate, under and in accordance with the requirements of said original sections. It follows, therefore, that this suit was not commenced, and was not a pending action against the appellant, or his decedent’s estate, from aught that appears in the record of this cause, until by his voluntary appearance therein at the September term, 1877, of the court, the appellant appeared to and answered the appellee’s complaint.

That part of the original opinion in this case, in which we declared that the amended sections 65 and 66 of the act of February 20th, 1855, as the same appeared in 2 G. & H. 503, and in 2 R. S. 1876, p. 515, must be received and regarded as a part of the law of this State, until changed by legislative action, is absolutely and unconditionally withdrawn, and we no w hold, in conformity with the previous decisions of this court where the like question was presented, that these amended sections, as attempted amendments of sections which at the time had no existence, were and are illegal, invalid and utterly void. The Board, etc., of Clay County v. Markle, 46 Ind. 96 ; Blakemore v. Dolan, 50 Ind. 194 ; Ford v. Booker, 53 Ind. 395 ; and Cowley v. The Town of Rushville, 60 Ind. 327. By force of the act of March 9th, 1867, repealing all laws theretofore passed, not in conformity with the decisions of this court in the case of Lang dan v. Applegate, 5 Ind. 327, the act of March 4th, 1853, amending said sections 65 and 66, as we have seen, was unconditionally repealed; and the effect of this repeal was to revive and render valid the original sections 65 and 66 of the act providing for the settlement of decedents’ estates, just as the same were enacted and approved on the 17th day of June, 1852, 2 R. S. 1852, p. 261. The repealing act of March 9th, 1867, contained an emergency *196clause, and took effect and became a law on the day of its approval. It follows, therefore, that since the 9th day of March, 1867, the original sections 65 and 66 of the act of June 17th, 1852, for the settlement of decedents’ estates, have been and now are in full force, and the only law of this State on the subject-matter thereof. Leard v. Leard, 30 Ind. 171; Lindsay v. Lindsay, 47 Ind. 283 ; Longlois v. Longlois, 48 Ind. 60. This rule, which has been so long recognized and acted upon by this court, that the repeal of a repealing act will operate as a revivor of the original act, has been changed by the provisions of ££An act declaring the effect of the repeal of statutes,” approved March 12th, 1877 ; but this change will have no effect or bearing upon the statutes considered in this opinion. See Acts 1877, Spec. Sess., p. 73.'

2. "We adhere to the views expressed, in our original opinion, in regard to the complaint of Charles Goodman against Harriet Sloo, administratrix, and James Wiles and -Cheever, assignees of Albert G. Sloo, deceased, filed in the court below on the 11th day of January, 1875. We can not regard this complaint thus filed in any other light than as a complaint in a civil action ; for, in that light, it was a proper complaint against all the persons named as defendants therein ; but, in a claim merely against a decedent’s estate, the law does not contemplate nor authorize a joinder of other persons, as defendants, with the administrator of the decedent. As a complaint in a civil action, the cause was properly entered at once upon the issue docket of the court by its clerk, for issue and trial, and process was properly issued thereon, upon, the appellee’s motion, for the defendants named therein. When the court ¡afterward, upon the defendant’s motion, struck said cause from the docket, it was an end of the case for all purposes, as it seems to us, unless and until the appellee might thereafter, if he chose, commence another suit upon the *197same cause of action. "We know of no law,, under which it can be said that this complaint of the appellee, against the defendants therein named, after the cause had been struck from the docket of the court, would remain therein as a pending, though dormant or quiescent, cause of action against the decedent’s estate, of which the administrator of the decedent was bouud to take notice, as a Us pendens. We are clearly of the opinion, that after the appellee’s suit on his original complaint was struck from the docket, on the defendant’s motion, by the order of the court, the appellee had no action pending in said court against the decedent’s estate, until he commenced this suit by altering his original complaint, by erasing therefrom the names of all the defendants except the name of the administratrix, thus making it a claim against the decedent’s estate, and by causing it to be entered upon the appearance docket as an initiatory step towards getting the case on the issue docket for trial, and finally by the voluntary appearance, apparently, of the appellant in this action.

3. We are asked by the parties to the record to give a construction to the first clause or sentence of section 216 of the practice act. This section was amended by an act approved March 13th, 1875, but only by adding thereto the proviso in the section, as it now appeal's in 2 R. S. 1876, p. 127. The first sentence or clause of this section reads as follows: “ The time during which the defendant is a non-resident of the State, or absent on public business, shall not be computed in any of the periods of limitation.”

The question is asked, in this case, what is the absence on public business, the time or duration of which shall-not be computed in any of the periods of limitation ? It is difficult, — so difficult as tobe almost impossible, — to laydown a general rule which shall be applicable to and govern all cases, in regard to the character of the public business, the duration of the absence as to which public business shall not *198be counted in any period of limitation. Indeed, it seems to us that it is hardly a case for a general rule ; but that, in each particular case, it must be determined from the facts of the case, whether the public business was or was not of such a character as to bring the case within the provisions of the statute. In the ease of Gregg v. Matlock, 31 Ind. 373, it was held by a majority of this court as then constituted, that absence from the State, as a volunteer soldier or officer in the army of the United States, constituted an absence on public business, within the meaning of the statute.