Brown v. Gorman

104 S.W. 1165 | Ct. App. Ind. Terr. | 1907

Gill, C. J.

(after stating the facts as above). The complaint in this action is to restrain the issuance of execution upon a void judgment. While there are some other parties vrhom it was claimed should have been made defendants in the action, there is no defect of parties, as there is but one party named, and he the judgment creditor.

Second. The plaintiff, if he had a cause of action at all, as against this judgment, is remediless save in a court of equity.

Third. Does the complaint state facts to constitute a cause of action? To this we must reply in the affirmative. The complaint alleges, in substance, that appellee, Gorman, had obtained a judgment without service upon the defendant, and that such judgment was void, not only for that reason, but for other reasons. If the allegation in the complaint is true— that no service was had upon appellant — a personal judgment could not be had as against him, and he would have the right of intervention by a Court of Equity to restrain the issuance of execution upon such judgment. The demurrer admits this allegation, and we must hold that the complaint states facts sufficient to constitute a cause of action, and that the court below erred in sustaining the demurrer.

But there is further error in this record. Upon application the court granted a preliminary injunction. There was no motion to dissolve this injunction, and the court seems, upon sustaining the demurrer, to have dismissed the complaint. We do not think that this is the proper practice. Upon sustaining the demurrer to the complaint, the plaintiffs should have required and been given time to amend or to have stood upon the complaint and brought the action to this court.

Finding error in this record the case is reversed and remanded, with direction to the court below to overrule the demurrer and require the appellees (defendants below) to plead and allow the case to take its usual course.

Clayton, Townsend, and Lawrence, JJ., concur.