Clark v. The State, 4 Ind. 268

Prekins, J. Clark was indicted in the Henry Circuit Court for an assault and battery with intent to murder. At the fall term, 1850, he obtained a change of venue to the Rush Circuit Court, where he appeared, at the spring term, 1851, and applied for a continuance to the next term of said Court.

The continuance was refused; and “thereupon [says the record], by an agreement between the said prosecuting attorney and the said defendant, this cause is remanded to the Henry Circuit Court for trial, and the trial thereof set for the Thursday of the first week of the next term of said Court.” The defendant entered into a recognizance to appear thereat accordingly. At that term, spring term, 1851, he did appear. He applied for a continuance, and obtained it, to the next term of said Court.

At said term, fall term, 1851, he appeared, was tried by a jury, convicted, and assigned the punishment of a fine and two years’ service in the penitentiary. After the return of the verdict, the defendant was called for sentence, and, not appearing, was defaulted, and the cause was continued.

At the succeeding spring term, 1852, the entry is that the prosecuting attorney appeared and, on his motion, the cause was “continued until the next term of this Court.” The next entry is that at the spring term, 1853, “the same being the next term of said Court after the spring term, 1852,” comes the prosecuting attorney, “and the said defendant in person and by counsel comes also, and moves the Court in arrest of judgment,” &c.; which motion was overruled, and the defendant sentenced upon the verdict of the jury. It is assigned for error— 1. That the Court had no jurisdiction of the cause; and, 2.

That it had no jurisdiction of the person. Upon the first assignment it is argued that the cause was legally removed from the Henry to the Rush Circuit Court, and that it was not legally returned from the Rush to the Henry Circuit Court. We think there is nothing in this point. It was competent for the Rush Circuit Court to grant a change of venue in the cause back to the Henry Circuit Court, upon a proper application. It did grant such change, and the defendant consented to it, and afterwards appeared in the cause in the latter Circuit Court.

If there was anything irregular, therefore, in the manner of taking the change, it was waived by the defendant. In Bosley v. Farquar, 2 Blackf. 61, where an objection like that in this case was made, the Court said, “if the venue had not been regularly changed, or not changed at all, from Orange to Washington, this matter should have been rectified in the Washington Circuit Court before any other proceedings were had in the case. As no objection was then made, nor, in fact, made at any time in that Court, none can avail here.” And in Wilson v.

Coles, 2 id. 402, where the cause had been continued, and there was after-wards, in the same term, a trial of it, both parties being present, it was held there was no error. Upon the second assignment of error, it is said that at the time the continuance was entered at the spring term, 1852, the law fixed the next term of the Henry Circuit Court in the following October; but afterwards, and before that time, the term in October was, by legislation, dispensed with or postponed until the spring of 1853; and, hence, it is insisted that there was a discontinuance; but we do not think so.

It was in the power of the legislature to change, regulate, and fix the terms of the Court; and, though the time of holding a term in Henry county was fixed at a more remote period of time than had been designated when the continuance was entered, still the continuance was to “the next term,” and no term, in fact, intervened, as the spring term, 1853, was the next term. This is one answer to the objection.

Another is, that there was an appearance in this case on the motion in arrest of judgment after the alleged discontinuance, and an appearance waives a discontinuance that may have happened by a neglect to enter the proper continuance. Our statute enacts that no judgment on a verdict, nil dicit, &c., shall be reversed on account of a discontinuance, &c. R. S. 1843, p. 714. Had a discontinuance happened in any previous stage of the cause, therefore, the appearance and verdict would have cured it by statute, at least in a civil case. The appearance must also waive a discontinuance after verdict.

The proposition is a general one. See Humble v. Bland, 6 T. R. 255.—Bouvier’s Law Dic., Titles, continuance and discontinuance.—Burrill's Law Dic., same titles. W. Grose, for the plaintiff. R. A. Riley, for the state. Per Curiam. The judgment is affirmed with costs.