28 Ind. App. 239 | Ind. Ct. App. | 1902
The appellee filed a complaint against the appellant, whose demurrer thereto was overruled. The appellant filed an answer in two paragraphs, the second being the general denial, and the first paragraph was struck out on motion of the appellee. Thereupon, the cause was submitted to the court for trial, and the could having heard the evidence and the argument of counsel, took the cause under advisement. Eight days afterward the appellee filed an amended complaint against the appellant and Enoch W. Agnew and Brantley A. Weathers. The defendants Agnew and Weathers separately and jointly answered the amended complaint. A demurrer of the appellant to the amended complaint for want of sufficient facts was overruled. At a later day, the appellant tendered an answer to the amended complaint, but the court refused to permit the answer to be
No attempt has been made to bring the evidence before this court. The specifications in the appellant’s assignment of errors relating to the sufficiency of the original complaint and to the ruling upon the demurrer thereto and to the action of the court in striking out the first paragraph of answer thereto can not be regarded as presenting any question for review. The amended complaint'superseded the original complaint. Upon the filing of the amended complaint, the original no longer constituted a part of the record. The filing of an amended complaint after an answer has been filed takes the original complaint and the answer thereto out of the record. Indianapolis, etc., R. Co. v. Center Township, 143 Ind. 63; Hedrick v. Whitehorn, 145 Ind. 642; Weaver v. Apple, 147 Ind. 304; Johnson v. Conklin, 119 Ind. 109; Western Assurance Co. v. McCarty, 18 Ind. App. 449; Barnes v. Pelham, 18 Ind. App. 166; City of New Albany v. Conger, 18 Ind. App. 230; Bozarth v. McGillicuddy, 19 Ind. App. 26; Insurance Co. v. Coombs, 19 Ind. App. 331.
The original complaint and the answer thereto did not form the issue finally tried and determined. It is plain, therefore, that there could be no available error in ruling upon a demurrer thereto or in striking out an answer thereto.
In the amended complaint it was, in substance, alleged, • that on the 1st of February, 1895, by the consideration and judgment of the circuit court of the state of Florida, of the.
In the separate answer which the appellant tendered and offered to file, it was alleged that under and by virtue of the laws of the state of Florida “the assignment of judgment declared on in the amended complaint” is void; wherefore, etc. For his further separate answer it was alleged, that at the time of the rendition of the judgment and at the commencement of the action in which it was rendered, and ever since, there was and has been and is in force in the state of Florida a statute of that state of the tenor following: “All writs of process iipon the institution of any suit in the circuit court shall be made returnable to the next rule day thereafter, unless there shall not be ten days intervening between the day of the issuing of the same and the next rule day, in which case the same shall be made returnable to the rule day in the next succeeding month. If ten days shall have intervened between the time of the service
In the “counterclaim and cross-complaint” of the appellant against the appellee and the codefendants Agnew and Weathers, it was alleged, in substance, that on the 27th of December, 1894, Agnew and Weathers as copartners, commenced an action against the appellant in said circuit court of Florida, by causing to be issued from that court a summons ad respondendum to the appellant; that this summons-afterward was returned to that court, endorsed as follows: “Came to hand December 28th, 1894, and executed on the 29th day of December, 1894, by serving within named S. P. Anthony in his absence from Marion county, by delivering a true copy of this original to his wife, at his usual place of abode in Marion county, a member of the family of said defendant, S. P. Anthony, more than fifteen years of age, explaining to her the contents thereof. B. D. Hodge, Sheriff, by P. H. Nugent, D. S.”
The answer contained two paragraphs, which do not appear to have been numbered, as required by the statute, and neither'paragraph stated facts constituting a defense. The first paragraph did not state any facts, and was plainly bad. The facts stated in the second paragraph did not show the judgment to be void. If the judgment was rendered upon a notice which under the law of the state in which it was rendered was too short, and was therefore erroneous and subject to be set aside or reversed under proper methods provided by the law of that state, this could not defeat a recovery upon the judgment still subsisting in full force. A judgment of a court of superior jurisdiction is not void because founded on service which was too short. Van Fleet Col. Att., §§490, 491; Essig v. Lower, 120 Ind. 239, 246; Helphenstine v. Vincennes Nat. Bank, 65 Ind. 582, 590, 32 Am. Rep. 86.
It does not appear from the record what evidence was received under the first submission of the cause for trial or under the second submission. It is possible that the court under the second submission considered the evidence introduced under the former submission, but of this we have no information. It does appear that an amended complaint was filed, that a demurrer thereto was overruled and that the additional defendants answered; and it appears that the cause was again submitted for trial, and that the court having heard all the evidence, etc., found for the plaintiff. If the court regarded the appellant’s answer of denial to the original complaint as still in the record, after permitting the filing of an amended complaint and of a demurrer
The mere insufficiency of the paragraphs of answer was not a sufficient reason for refusing to permit the filing thereof, which the record indicates was done by the court of its own motion. The failure to number the paragraphs was a mere irregularity. What would have been the proper course to be taken upon a refusal to correct it is not a question here. In McCoy v. Stockman, 146 Ind. 668, it is said to be error to strike out a complaint on the ground that it does not state facts sufficient, because the plaintiff has a right to amend so that his pleading will state facts sufficient, and he can not do this if his pleading is struck out. This reason is applicable also to a refusal to permit a party to file a pleading. See, Smith v. Harris, 135 Ind. 621, 623; also, Mabin v. Webster, 129 Ind. 430, 28 Am. St. 199.
If a pleading tendered by a party be'insufficient, and if it be not wholly incapable of amendment which will make it sufficient, it certainly should not be rejected, especially where the rejection amounts to a refusal to permit the defendant to take issue upon the complaint. If we should conclude that there was no available error in refusing permission to file the answer, we could not so regard the court’s action relating to the “counterclaim and cross-complaint.” This pleading sufficiently showed that the judgment sued on was rendered by a court of superior jurisdiction of a sister state without jurisdiction of the person of the judgment defendant, and was therefore void.
In Pond v. Simons, 17 Ind. App. 84, this court, properly recognizing the Supreme Court of the United States as the paramount authority in the construction of the Constitution and statutes of the United States, followed the more modern doctrine of that court, as expressed in Grover, etc., Co., v.
The appellant’s pleading now in question showed that the merely apparent jurisdiction was obtained through the fraud of the judgment plaintiffs and the officer who made a false return of service of process. This constituted a good ground for equitable relief against the enforcement of the judgment. Brown v. Eaton, 98 Ind. 591; Cavanaugh v. Smith, 84 Ind. 380; Freeman on Judg., §576; Pomeroy’s Eq. Jur., §919.
Whether any relief might be afforded by our courts against the attempted enforcement here of a judgment of a court of a sister state because of fraud other than such as affected the jurisdiction of that court is not a question in this case.
We are inclined to the opinion that our courts should regard any unconscionable judgment of a sister state procured by fraud as open to impeachment under pleadings based upon equitable principles, in such state, and that relief may be had under our reformed procedure against an attempt to enforce such a judgment in this State.
The assignee of a judgment takes it subject to all equities existing in favor of the judgment defendant against the judgment plaintiff. Robeson v. Roberts, 20 Ind. 155, 83 Am. Dec. 308; Freeman Judg., §427.
The court should have permitted the parties to plead until issues were made up for trial, and the trial should have been had upon such issues.
Judgment reversed.