
    Young and Others v. The State Bank.
    Where, in the absence of a party, the Court has improperly allowed the record to be amended by noting the filing of pleadings by his adversary, the proper remedy is by motion, in the same Court, to have the amendment set aside.
    A judgment by nil ¿licit, where pleas remain undisposed of, is erroneous.
    The legislature has not the power to grant a new trial of a suit at law.
    
      
      Monday, November 28.
    ERROR to the Owen Circuit Court.
   Perkins, J.

Assumpsit by the State Bank for the use of the branch at Terre Haute, against John Young and others, upon a promissory note payable at said branch. Judgment below for the plaintiff, September, 1841.

In 1845 the legislature of the state passed an act granting a new trial. The Circuit Court held said act unconstitutional, and refused to hear the new trial. Before considering this point, another will be noticed.

The judgment in the case upon the trial had, was entered as one by nil dicit, no defence appearing to have been interposed. Subsequently the record was amended, on the motion of the defendants, in the absence of the plaintiff, so as to show that the plea of the general issue and several special pleas were filed, upon which issues at law were formed. It is objected that said amendment was illegally made. This objection has already been answered. When this cause was before us upon the chancery side of the Court, it was decided that the Court below had power to make the amendment. See the case of The State Bank v. Young et al., 2 Ind. R. 171. It is there laid down that, “what the bill says as to the entry made in the record relative to the filing of the pleas, is not material. The pleas were on file among the papers in the cause, but the clerk had omitted to make an entry of their being filed. The Court of law, surely, could have that misprision amended at any time when proper application was made. If the amendment was objectionable for the want of notice to the bank of the motion, as is insisted upon by her counsel, she should have applied to the Court of law, on that ground, to set the amendment aside.”

No such application appears to have been made, and the pleas must, therefore, be considered a part of the record of the cause. This being the case, the judgment by nil dicit, those pleas being undisposed of, was clearly erroneous, and must, for this cause, be reversed. Tipton v. Cummins, 5 Blackf. 571.—Maddox v. Pulliam, id. 205.

We now return to the point passed by, though it has become immaterial in the case.

The Circuit Court did right in refusing to hear the new trial granted by the special act of the legislature. The legislature does not possess the power to grant a new trial in a suit at law. The constitution of Indiana has always contained the following provision:

“The powers of the government of Indiana shall be divided into three distinct departments, and each of them be confided to a separate body of magistracy, to-wit: those which are legislative, to one; those which are executive, to another; and those which are judiciary, to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.”

There is no section of the constitution permitting the legislature to grant new trials.

The granting of a new trial is a judicial act, and, in this state, controlled by settled rules of law. If an inferior Court should, in any given case, exercise the power to grant new trials, in violation of these settled rules, this Court would set aside the grant, and leave the judgment rendered unaffected.

Now, the constitution above quoted says the legislature shall not perform a judicial act. The granting of a new trial, we have seen, is a judicial act. Therefore, the legislature cannot grant a new. trial.

And it is a power that should not be possessed by the legislature, in its legislative capacity; because, in that capacity, it would not be governed by legal rules. In governments where the constitution converts the legislature, on some occasions and for some purposes, into a court, while that body is thus acting, it is governed by the same rules, and restrained in its action by the same authorities, as are courts of law. Not so where it acts simply in its legislative capacity; and to permit it to dispose of judicial questions in that capacity, would be in the highest degree dangerous to the rights of the individual members of the community.

C. P. Hester and I). Wallace, for the plaintiffs.

A. Kinney and S. B. Gookins, for the defendant.

It has already been solemnly decided by the highest courts of the Union, that the legislature of a state cannot pass appraisement and stay laws that shall embarrass and postpone the collection of debts beyond the time allowed by the law of the contract, on the ground that such legislation impairs the obligation of contracts. But if the legislature may grant new trials, ad libitum, it can forever prevent the collection of debts. It could, at pleasure, wipe out every judgment in the state. Possessed of such a power, that of passing stop-laws would not be sought for.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c. 
      
       The language quoted is that of article 2 of the constitution of 1816. Article 3 of the constitution of 1851, is as follows: “The powers of the government are divided into three separate departments; the Legislative, the Executive, including the administrative, and the Judicial; and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this constitution expressly provided.”
     