104 Ind. 336 | Ind. | 1885
On the 21st day of September, 1882, appellees filed a complaint in the court below against appellant. The substantial averments of that complaint may be epitomized as follows: In April, 1874, William John Wallace was the owner of a tract of land,- of thirty-seven -3^- acres, and mortgaged it to Andrew Wallace to secure a loan of $5,000, evidenced bjr five promissory notes. The mortgage was duly recorded, and after record, together with the notes, was duly assigned to John Wymond. Payment not having been made according to the stipulations in the notes and mortgage, Wymond foreclosed the mortgage in April, 1879, and recovered a personal judgment against the mortgagor for the amount of the notes due. The land was sold under the decree on the 7th day of June, 1879, was purchased by Wymond, and he
To that complaint appellant filed the following demurrer: “Comes now the defendant and demurs to the plaintiffs’' complaint herein, and for cause says: It does not state facts sufficient to constitute a cause of action against this defendant. And, also^ for a defect of parties plaintiffs, in that the administrator of John Wymond, or all his heirs at law, are not joined either as plaintiff or defendants.” The demurrer was overruled and the defendant, appellant herein, excepted. A rule for an answer having been entered, and the defendant, with knowledge of the rule, having neglected to comply with it, was defaulted for want of an answer.
Appellant herein filed its complaint in this action for a review of the judgment and proceedings in the above described ease, and claims that there are errors apparent upon the face of the record. These alleged errors are specifically set out, but are really all embraced in the following:
“Fourth. The court erred in overruling this plaintiff’s demurrer to the complaint.
“Fifth. The court erred in rendering judgment against this plaintiff for the costs in such action, as it was not a necessary party, and no judgment or finding against it was taken or given.
“Sixth. The court erred in rendering the final judgment and decree for a strict foreclosure, and in perpetually enjoining this plaintiff from claiming or setting up any interest, claim or right in said property.”
The court below sustained a demurrer to appellants’ complaint for review. If the alleged errors did intervene in the
It is argued here that the complaint in the former cause was insufficient for the reason that it contained no allegation that the defendant had, or claimed to have, any interest or title, or color of interest in the land covered by the mortgage, or that it claimed to have any lien upon the laiid by virtue of having filed a transcript.of a judgment.
That portion of the complaint in relation to the transcript filed by appellant is not a model pleading. It was evidently drawn in great haste, and without much thought of the certainty that should characterize all pleadings. But we think that, considering all the averments of the complaint in relation to the filing of the transcript, it is made to appear that the transcript was' the transcript of a judgment against the mortgagor Wallace, and in favor of the defendant, appellant here, the insurance company. The fact that the insurance company had filed a transcript of the judgment, showed sufficiently that it was moving to acquire a lien that might be enforced against the real estate of the judgment defendant and mortgagor, Wallace. The statute provided then, as it does now, 2 R. S. 1876, p. 236, sections 539, 540, R. S. 1881, sections 612, 613, that transcripts of judgments rendered by justices of the peace might be filed in the office of the clerk of the circuit court; that it should be the duty of the clerk forthwith to record the transcript in the order-book, and docket the judgment in the judgment docket, and that the judgment set forth in the transcript should be a lien upon the real estate of the defendant within the county, etc., from the time of filing the transcript. The proper construction of these statutes perhaps is, that as between the parties to the judgment and others with actual knowledge, such transcripts
It is averred in the complaint, as we have seen, that the transcript of appellant’s judgment was filed in the clerk’s office. It is further averred that the judgment became a lien upon the land covered by the mortgage. This averment is somewhat in the way of an averment of a conclusion, but taking all of the averments together, we think that it is sufficiently made to appear that the insurance company had a judgment which, by its acts, it was asserting to be a lien upon the land covered by the mortgage. The complaint, therefore, made such a case as called for an answer, defence or disclaimer by appellant.
The argument is pressed that the complaint shows that there were not sufficient parties plaintiffs. This argument is based upon the theory that the Wymond heirs, having been in possession of the land, were liable to account for the rents. It is a sufficient answer to this to observe that the complaint did not show that all of the Wymond heirs were at any time in the actual possession of the land, nor that the land had any rental value whatever. And as to the point made by appellant, that Wymond’s administrator should have been a party, it may be sufficient to observe that it does not appear from the complaint that there was such an administrator, nor that there was a necessity for any. If by any possibility it could have been necessary or proper to have such an administrator a party to the action, that necessity should have been shown by an answer.
The other two questions discussed at length by appellant’s counsel are, that the court below erred in rendering judgment against appellant for costs in the former case, and in rendering judgment that appellant should redeem in ten days; and, further, in rendering the final judgment, that as the redemption had not been made within the ten days as fixed by the
Appellees meet the argument upon these questions, in part, by the contention that as no objections were made by appellant to the judgments complained of, and no motion of any kind made to modify them, appellant is not in a position to now complain; at least, in no position to make any complaint available. .This contention can not be disregarded. The rules which govern in actions to review are, in the main, the same that govern in an appeal to this court. The errors that may1 be made available in an action to review are those that may be made available-upon an appeal. Rice v. Turner, 72 Ind. 559; Richardson v. Howk, 45 Ind. 451; Buskirk Pr., p. 271; Tachau v. Fiedeldey, 81 Ind. 54; Indiana Mutual Fire Ins. Co. v. Routledge, 7 Ind. 25; Hardy v. Chipman, 54 Ind. 591.
It has uniformly been held that if no objection be made to the judgment, and no motion made to modify it in the trial, court, no objection can be made available upon appeal, nor in an action to review, however erroneous the judgment may be. This rule has been applied even where judgment was rendered by default. Barnes v. Wright, 39 Ind. 293; Darlington v. Warner, 14 Ind. 449; Sturgis v. Rodman, 14 Ind. 604; Tachau v. Fiedeldey, supra ; Searle v. Whipperman, 79 Ind. 424; Barnes v. Bell, 39 Ind. 328; Baldwin v. School City of Logansport, 73 Ind. 346; Ludlow v. Walker, 67 Ind. 353; Leonard v. Blair, 59 Ind. 510; Johnson v. Prine, 55 Ind. 351; Evans v. Feeny, 81 Ind. 532; McCormick v. Spencer, 53 Ind. 550; Bayless v. Glenn, 72 Ind. 5; Teal v. Spangler, 72 Ind. 380; Smith v. Tatman, 71 Ind. 171; Powers v. Johnson, 86 Ind. 298; Forgey v. First Nat’l Bank, etc.., 66 Ind. 123; Buchanan v. Berkshire Life Ins. Co., 96 Ind. 510; Buskirk Pr., p. 268.
In the case before us, the court had the undoubted authority to render a judgment in relation to the costs, and to render a judgment fixing the time and manner of redemption by appellant. If in the rendition of these judgments there was
It is true that appellant, after its demurrer was overruled, practically abandoned the case, but that abandonment can not be urged by it as a reason for not having made such objections or motions below, and as a reason why it should be allowed to make the objections for the first time upon appeal, or in an action to review. If appellant sought to save questions as to the proceedings in the case, it should have followed the case to the end, and saved the questions. Not having done so, the record presents no question for decision in the action to review, as to the form or substance of the judgments rendered. So far as presented by the record, there is •no error that would justify this court in setting aside the judgment in this proceeding for review. The court below, therefore, correctly sustained the demurrer to appellant’s complaint in this action.
The judgment is affirmed, with costs.