50 Ind. App. 624 | Ind. Ct. App. | 1911
— This is an appeal from a judgment of the lower court on a motion, made by appellant, to modify the judgment in a cause wherein Lillie S. Baker was plaintiff, and appellant, appellees and numerous other parties were defendants.
This judgment was rendered on May 27, 1909, being the twenty-eighth judicial day of the April term of said court, and quieted the title in and to each lot claimed by the plaintiff and by the respective cross-complainants. On October 9,1909, being the thirtieth day of the September term of said Lake Circuit Court, said cause was, on motion of appellant, reinstated on the docket, and appellant then appeared specially, and moved that the court modify said judgment so as to eliminate that part of said judgment which quieted title in the respective cross-complainants to the particular lots described in their respective cross-complaints, on the ground that such lots were not described in, or involved in the original complaint, and that the court therefore did not have jurisdiction to render that part of said judgment involving such lots.
Notice of said motion to modify said judgment was served on each of said cross-complainants, November 9, 1909, but, was not served on plaintiff nor any of the defendants to said cross-complaint.
The attorneys for said cross-complainants on September
The transcript and assignment of errors was filed herein December 24, 1910. Appellant makes each of said cross-complainants appellees to this appeal, they being the only parties on whom he served notice of his motion to modify said judgment. Appellees move to dismiss the appeal; the grounds of which motion are, in substance, as follows: (1) This court has no jurisdiction of the appeal because all of the parties in whose favor the judgment below was rendered and who are affected by the judgment entered in said court, are not made parties to nor named in the assignment of errors. (2) Because said motion was not made until one term after final judgment had been entered and the cause disposed of in the court below, and such court had no jurisdiction to take any action whatever in the case at the time the motion to modify was filed. (3) Because appellant, Henry A. Bradford, is not named as a cross-defendant in any of the cross-complaints on which decrees were taken against which he bases his ground of complaint, and he is not therefore affected or bound thereby.
In his' motion to modify said judgment, appellant sets out the facts above indicated as disclosed by the record, and avers that he is the owner of the lots described in the several cross-complaints, title to which was quieted in said respective cross-complainants.
It is contended by appellees that appellant was not a party to either of said cross-complaints on which that part of the judgmerit which he seeks to strike out was rendered, and was not affected thereby, and is, therefore, in no position to prosecute this appeal.
In answer to this contention appellant insists that said judgment, in so far as it quieted title in the cross-complainants to the respective lots described in their said cross-corn-
There is authority to the effect that .one may invo'ke the jurisdiction of the court in certain instances to obtain relief even from void judgments, but so far as we have been able to find, these eases are all cases where such judgments were in some way teeing attempted to be enforced or some right or claim was being asserted under such judgment against the party seeking relief therefrom. In view, however, of the conclusion reached in this case, this question is not important.
In support of his contention, that the parts of said judgment which by his motion he sought to strike out were void, appellant asserts that a court has no jurisdiction to adjudicate matters between the litigants outside the issues tendered by the respective pleadings, and that a judgment in só far as it attempts to adjudicate such questions is void. This contention is supported by authority. Fletcher v. Holmes (1865), 25 Ind. 458, 473; Unfried v. Heberer (1878), 63 Ind. 67, 73; Barrett v. Cohen (1889), 119 Ind. 56, 58, 20 N. E. 145, 21 N. E. 322, 12 Am. St. 363; Reynolds v. Stockton (1891), 140 U. S. 254, 11 Sup. Ct. 773, 35 L. Ed. 464.
In this connection it is further insisted that a cross-complaint must be germane to the cause of action tendered by the complaint, and that a cross-complaint which tenders an issue between the defendants to the complaint, wholly independent of and in noway connected with the cause of action stated in the complaint, should be stricken out and not considered by the court.
This contention of counsel is also supported by authority. Washburn v. Roberts (1880), 72 Ind. 213, 217; Fool v. Davis (1893), 135 Ind. 323, 330, 34 N. E. 1130; Heaton v. Lynch
None of the authorities cited, however, presents the question presented by the record in this case. The record here discloses that the plaintiff to the original action was made defendant to each of said cross-complaints, that said cross-complaints were filed without objection by any of the parties to the action, and the court without objection adjudicated the issues thereby tendered.
The parties to the original action, especially the plaintiff, have the right to insist that the trial of the issue which they tender shall not be delayed by, or confused with, issues tendered by one of the defendants to his action wholly independent of and not germane to. the original action, but when all parties acquiesce in the trial of such independent issues,
But conceding without deciding that under the averments of appellant’s motion to modify, and the record on which it is predicated, he had a right to ask the modification of the judgment presented by his motion, it was necessary that the court should determine and adjudicate the question so presented.
The record in this ease shows that the respective cross-complainants alone were served with notice of the motion to modify. Neither the plaintiff to the original action, nor any of the several defendants to the cross-complaint were parties to such motion.
The court below, therefore, was without jurisdiction to render a judgment on said motion binding on all the parties to the original judgment.
Judgment affirmed.
Note. — Reported in 96 N. E. 508. See, also, under (1) 23 Cyc. 802; (2) 23 Cyc. 877, 878; (3) 3 Cyc. 233.