Shipman v. The State. being duly sworn, on his oath says that just before the shooting by him of John C. Kelly, deceased, mentioned in the indictment herein, he was attacked by said Kelly, who, after striking twice at affiant with a knife, did stab affiant in his left arm with said knife; whereupon, believing, and having reasonable cause to believe, that it was necessary so to do to save his own life, he did, seeing no other means of escape or retreat, shoot said Kelly; that he had not given said Kelly any provocation whatever, and had no malice whatever against him; that affiant, before and at the time of the trial, knew of no testimony tending to prove that said Kelly did so stab affiant, except the testimony of one Sarah Ann Shipman, wife of Levin Shipman, jointly indicted with, and a brother of, affiant; that evidence was introduced by the State tending to prove, and it was by the prosecutor argued upon the trial, that affiant, in order to fabricate a defence, stabbed himself; and that the wound upon his left arm, claimed by him to have been inflicted by said Kelly, was inflicted by affiant himself with his own knife; that since said trial affiant has discovered, and avers that he can now prove, that upon the night and shortly after said shooting, a knife was found in the pocket of said Kelly, and belonging to him, upon the blade of which was discovered woollen lint, such as would have been found upon it if, as affiant alleges, it had been thrust through his coat-sleeve, and also traces of human blood, such as, also would have been found upon it if it had been, as affiant alleges, thrust into his arm; that he can identify said knife so found in the pocket of said Kelly as his, said Kelly's, knife, by one Moore, a colored washerwoman, whose given name is to affiant unknown, and also by the wife and children of said Kelly, whose names are also to affiant unknown; and that he can also prove the fact that woollen lint and traces of blood were found upon the blade of said knife, as hereinbefore set forth, by one Philander W. Payne, a physician and surgeon, learned and skilled in all the matters pertaining to his profession, and in experiments and examinations requiring a knowledge of chemistry and Shipman v. The State. the microscope. Affiant further says that within two hours after the shooting aforesaid, he was arrested, and has ever since been confined in the Johnson county jail; that the indictment upon which he was tried was returned by the grand jury at this term of this court, and affiant immediately put upon his trial; that affiant had and has no means, nor any relations or friends able to furnish means, wherewith to enable him to employ counsel, or to prepare for his defence; that he was defended by counsel assigned him by the court when his case was called for trial, who knew nothing of the newly-discovered evidence hereinbefore set forth; that all the witnesses by whom affiant expects to prove, and can prove, the newly-discovered facts hereinbefore set forth, reside within the jurisdiction of this court, and in the city of Franklin, and he can prove such facts by them if a new trial be granted him; but, for the reasons hereinbefore set forth, he has been, and is, unable to procure their affidavits of such newly-discovered facts in support of his motion for a new trial. All of which affiant swears to be true, as he verily believes." The defendant also filed the affidavit of Messrs. Oyler and Howe, the attorneys assigned by the court to defend the defendant, stating, in substance, that until after the trial they had no knowledge whatever of the newly-discovered evidence, nor was there any information in their possession tending to put them upon inquiry in relation thereto; that they had reason to believe, and did believe, that the appellant knew nothing, nor was there anything tending to put him upon inquiry as to such newly-discovered facts, until after the trial. We are of opinion that the application for a new trial, on the ground of newly-discovered evidence, was properly overruled, for the reason, if for no other, that the affidavits of the witnesses, whose evidence was sought to be obtained, were not filed. No good reason is shown why their affidavits were not or could not be procured. They resided, as is shown in the appellant's affidavit, not only within the Robbins v. Alley et al. jurisdiction of the court, but in the town or city where the cause was tried. The appellant was, to be sure, in custody, but his personal attendance was not necessary in order to procure the affidavits. This could have been done much better, probably, by counsel than by himself. If there had not been time to procure the affidavits of the witnesses, time should have been asked for that purpose. Gibson v. The State, 9 Ind. 264. Nothing of this kind, however, was done. The appellant complains of some charges given, and of the refusal of the court to give some that were asked by him. We deem it unnecessary to extend this opinion by setting out the charges given and refused. We think the charges given, as a whole, were correct, and that those asked by the defendant and refused, were substantially embraced in those given by the court. There is no error in the record, for which the judgment ought to be reversed. The judgment below is affirmed, with costs. S. P. Oyler and D. Howe, for appellant. B. W. Hanna, Attorney General, for the State. ROBBINS V. ALLEY ET AL. ATTACHMENT.-Proceedings in attachment and garnishment are mere incidents to the main action, and depend upon it. SAME.-Jurisdiction.—Construction of Statute.—In an attachment proceeding, where the principal defendant is a resident of the State, the place of his residence determines the jurisdiction of the court. The provisions of section 162, 2 G. & H. 142, do not change the general rule which requires actions to be brought in the county where the defendant has his usual place of residence. APPEAL from the Decatur Common Pleas. DOWNEY, J.-There are two errors assigned in this case; first, the sustaining of the separate demurrer of Hiram Alley to the complaint; and, second, the overruling of the demurrer Robbins v. Alley et al. of the plaintiff to the separate answer of Stephen Alley. There is a third error assigned, but it raises no question. The complaint commenced as follows: "The State of Indiana, County of Decatur. In the Court of Common Pleas, February term, 1871. John E. Robbins v. Stephen Alley and Hiram Alley. Complaint on note and affidavit for attachment." It then says: "The plaintiff, John E. Robbins, complains of Stephen Alley, and says," etc., setting out a cause of action against Stephen Alley alone, on a promissory note, and making no further mention of Hiram Alley. We think the demurrer of Hiram Alley was properly sustained to the complaint. It showed no reason for uniting him in the complaint with Stephen Alley. The separate answer of Stephen Alley was to the jurisdiction of the court, and in it he alleged that at the time of the beginning of the suit he was, and still is, a citizen and resident householder of the county of Miami, in the State of Indiana, and was not at said date, and has not been since the 29th day of November, 1870, a resident of said county of Decatur; wherefore he prayed judgment whether the court had jurisdiction, and that he be adjudged to go hence, etc. With certain specified exceptions, actions must be commenced in the county where the defendants, or one of them, has his usual place of residence, and this case does not fall within any of the exceptions. 2 G. & H. 58, sec. 33. But in this case there was an attachment sued out against the property of Stephen Alley, on an affidavit that he had sold, conveyed, and disposed of his property subject to execution, with the fraudulent intent to cheat, hinder, and delay his creditors, and was about to sell, convey, and otherwise dispose of his property subject to execution with such intent; and a process of garnishment against Hiram Alley issued on an affidavit that he was indebted to Stephen Alley, and had in his possession moneys, rights, credits, and effects belonging to him which the sheriff could not attach; and it is claimed that these facts conferred jurisdiction upon the Tinder v. The Duck Pond Ditching Association. common pleas of Decatur county, notwithstanding the principal defendant resided in Miami county. We think this position cannot be maintained. The attachment and garnishment are mere incidents to the main action. They depend upon it, and not it upon them. Fechheimer v. Hays, 11 Ind. 478. Where the principal defendant is a resident of the State, the place of his residence determines the jurisdiction of the court. If the defendant is not a resident of the State, the plaintiff may have judgment wherever his action has been commenced in any of the following cases: first, when the defendant has been personally served with process; second, when property of the defendant shall have been attached in the county where the action is brought; or, third, when a garnishee shall have been summoned in the county where the action is brought, who shall be found to be indebted to the defendant, or to have property or assets in his hands subject to the attachment. 2 G. & H. 142, sec. 162. But we think this section of the code was not intended to change the general rule, which requires the action to be brought in the county where the defendant has his usual place of residence, he being a resident of the State, merely because an attachment or process of garnishment has been sued out. See Michael v. Thomas, 24 Ind. 72. The judgment is affirmed, with costs. C. Ewing and F. K. Ewing, for appellant. TINDER V. THE DUCK POND DITCHING ASSOCIATION. PRACTICE.-Motion for New Trial.-All grounds for a new trial must be presented to the court below, in order to be available in the Supreme Court. STATUTE.-Ditching Law.—The ditching law having been repeatedly held constitutional, the Supreme Court refused to again discuss the question. |