Lytle v. Lytle et al. ATTACHMENT.-Issue Between Attaching Creditors.—An attaching creditor may contest the claim of other attaching creditors, where the defendant does not appear and defend. JUDGMENT.-Presumption of Defendant's Appearance. In a suit upon a judg ment for alimony in a divorce proceeding, the appearance of the judgment defendant in said proceeding for a divorce will be presumed until the contrary appear. APPEAL from the Henry Circuit Court. DOWNEY, J.-Certain of the appellees sued William Lytle, and attached his property, he being a non-resident of the State. The appellant filed a claim under this attachment, being a judgment in her favor for alimony, in a divorce case, against her husband, the said William Lytle. She did not file any transcript of the record in the case for divorce and alimony, with her complaint, but her complaint was held good on demurrer. The attaching creditors answered that no notice of the suit for divorce and alimony was given to the defendant therein, other than "by publication upon affidavit made by her that said William Lytle was a non-resident of the State of Indiana." Mrs. Lytle demurred to this answer, and her demurrer was overruled, and the answer held a bar to her claim. Refusing to reply to the answer, judgment was rendered against her, from which she appeals, and assigns for error that the court improperly overruled the demurrer to the answer. It is attempted by affidavit, in this court, to show that a copy of the judgment in the divorce and alimony case was filed with the complaint, but we think the record cannot be corrected, or defects in it supplied, in this court, in this manner. If such practice could be allowed, we could not find from the affidavit that the copy was filed, for it does not state that fact. In order that the court may know that a written instrument or copy is filed with the pleading, as constituting the foundation thereof, it should be identified by reference to it and making it an exhibit. The Peoria, etc., Co. v. Walser, 22 Ind. 73. The sufficiency of the complaint in this case is brought in question by the demurrer to the answer; for if the complaint Lytle v. Lytle et al. was bad, the issue on the demurrer to the answer was properly determined against the party demurring. We think, however, that the court committed no error in holding the complaint good as against the objection made to it. It is true that it has been repeatedly decided by this court, that it is necessary in bringing an action upon a judgment, or in setting up a judgment as a defence or by way of reply, that a copy of the judgment shall be filed with the pleading; and these rulings have been based on 2 G. & H. 104, sec. 78, which provides, that "when any pleading is founded on a written instrument or on account, the original, or a copy thereof, must be filed with the pleading," etc.; but, after mature consideration, we have come to the conclusion that a proper construction of that section of the code, and a regard for convenience and economy in practice, require us to hold that a judgment is not a "written instrument" within the meaning of that section. Deeds, mortgages, bonds, written contracts, promissory notes, bills of exchange, etc., are written instruments. Judgments are in writing, but are not usually called written instruments. The legislature, in framing and enacting the section, evidently had in view only instruments of which "the original, or a copy," might be filed, as the party might elect. The original of a judgment cannot be filed. It is frequently the case that the judgment which is pleaded is a judgment of a court of the same county, and often it is a judgment of the same court in which the pleading is filed. In such cases it is unnecessarily inconvenient and expensive to the party to be compelled to procure a transcript of the record pleaded, which must be a complete record, to be filed with the pleading. If the record is of the court of another county in the State, or of a foreign state, the party pleading it will, of course, have to obtain a copy as evidence, whether it be filed with the pleading or not. It results from this ruling that the case of Reasor v. Raney, 14 Ind. 441; Norris v. Amos, 15 Ind. 365, and other cases following them, are overruled. This new construction of the section in question can work no harm to any one in cases already disposed of Hamlyn et ux. v. Nesbit, Adm'r. in the subordinate courts, for any pleading which would have been good under the former construction should be good under the view of the section which we have taken. The next question made is, as to the right of the attaching creditors to question the validity of the claim of Mrs. Lytle. This point is decided against the appellant in The U. S. Express Co. v. Lucas, 36 Ind. 361. The third question discussed is, whether a judgment for alimony in a divorce case, where there has been no other notice than by publication in a newspaper, the defendant having been a non-resident of the State, and not having appeared to the action, will constitute a legal cause of action in another suit against the defendant. This question was answered in the negative in Beard v. Beard, 21 Ind. 321, and apparently the other way in Farr v. Buckner, 32 Ind. 382. In the case at bar, we think the question is not presented. As will be seen from the quotation made by us from the answer, it is not shown in this case that the defendant, in the suit for divorce and alimony, did not appear in that action. We must presume, in favor of the judgment, that he did appear, at least until the contrary shall be shown. For this reason, the demurrer to the answer should have been sustained by the circuit court. The judgment is reversed, with costs, and the cause remanded. L. and W. O. Sexton, for appellant. 37 284 124 544 37 284 132 356 HAMLYN ET UX. v. NESBIT, Adm'r. DECEDENTS' ESTATES.-Appeal.-Section 189 of the act for the settlement of decedents' estates is in force, except so far as it authorizes a writ of error. The party aggrieved has his election to appeal from the common pleas court to the circuit court, in any matter connected with the decedent's estate, or Hamlyn et ux. v. Nesbit, Adm'r. under section 550 of the code, to the Supreme Court. If appealed to the circuit court, the case is tried de novo, and if there are issues of fact, they may be tried by a jury. SAME.-Trial.-Burden of Issue.-Where the administrator had reported, and exceptions were taken to his report, and the administrator charged that the decedent had made unequal advancements to the heirs, and this was denied, and an appeal was taken to the circuit court; Held, that the administrator was entitled to have the open and close on the trial. SAME.-Witness.-Evidence.-The administrator is a competent witness on such trial. The wife of one of the co-plaintiffs, the real party in interest, cannot be a witness. Nor can the declarations of the ancestor, made long after the supposed payment or advancements to his children, be proved for the purpose of establishing the fact that such payments or advancements were made. APPEAL from the Franklin Circuit Court. BUSKIRK, J.-In 1863, letters of administration on the estate of Thomas Nesbit, Sr., deceased, were granted to James Nesbit and Thomas Nesbit, Jr., by the common pleas court of Franklin county. Proceedings were continued in said court up to 1867, when a citation issued requiring the administrators to appear and settle. Prior to the issuing of the citation, the administrators had filed in the clerk's office their first account current, and after the issuing of said citation, they filed their final account current and final settlement of said estate. The appellants, Hamlyn and wife, she being a daughter and heir of the decedent, appeared in the court of common pleas and filed exceptions to the accounts. Issues were formed on the exceptions, and were heard and tried by the court, and resulted in a finding that there was still due Mrs. Hamlyn five hundred and twelve dollars and seventy-five cents, which the administrators were required to pay. The court overruled a motion for a new trial, and rendered a judgment on the finding. The administrators appealed the case to the circuit court. In the circuit court, the appellants moved to dismiss the action for the reason that that court had no jurisdiction of the case, which motion was overruled, and an exception was taken. The circuit court retained jurisdiction of the cause, and it was tried de novo and by a jury, resulting in a general and special verdict. The appel Hamlyn et ux. v. Nesbit, Adm'r. lants moved for a new trial, which was overruled, and final judgment was rendered on the verdicts. It should be noted that Thomas Nesbit, Jr., one of the administrators, appeared in the circuit court and filed a paper to the effect that he was satisfied with the judgment of the common pleas court; that he had not taken an appeal, or authorized an appeal to be taken in his name, and that he desired the appeal to be dismissed, so far as he was concerned. Thereupon, the appeal was dismissed as to him. The appellants have assigned eight errors. The first one is based upon the action of the circuit court in overruling the motion of the appellants to dismiss the action for the want of jurisdiction. Did the circuit court have jurisdiction of the cause? It is claimed that section 189 of the act for the settlement of decedents' estates gave the appellee an appeal from the common pleas to the circuit court, and conferred jurisdiction. on the latter court. That section reads as follows: "Sec. 189. Any person considering himself aggrieved by any decision of a court of common pleas growing out of any matter connected with the decedent's estate, may prosecute a writ of error or appeal to the circuit or Supreme Court, upon filing with the clerk of such court of common pleas, a bond with penalty in double the sum in controversy, in cases where an amount of money is involved, or where there is none, in a reasonable sum, to be designated by such clerk, with sufficient surety, payable to the opposite party in such appeal, conditioned for the diligent prosecution of such appeal, and the payment of all costs, if costs be adjudged against the apppellant." It is claimed by the appellants that the above quoted section was repealed, by implication, by section 550 of the code. 2 G. &. H. 269. Section 550 reads as follows: "Writs of error are hereby abolished. Appeals may be taken from the courts of common pleas and the circuit courts, to the Supreme Court, by either party, from all final judgments, except in actions originating before a justice of the peace, or mayor of a |