38 Ind. App. 226 | Ind. Ct. App. | 1905
Lead Opinion
It appears from the complaint that the appellant is the owner of back-lying real estate within 150 feet of a street, in the city of Lebanon, improved in 1896 under the Barrett law, the purpose of the suit being to- foreclose the lien of the assessment upon said back-lying real estate, the front portion thereof owned by other parties having sold for an amount less than such assessment.
A demurrer for want of facts to each of the two paragraphs of complaint was overruled. An answer of several paragraphs was filed, including a general denial, special findings of fact and conclusions of law were made and stated by the court, and a decree of foreclosure rendered in accordance therewith, from which this appeal is taken.
Since the cause was tried and since the appeal was perfected the case of Voris v. Pittsburg Plate Glass Co. (1904), 163 Ind. 599 — the facts of which are very similar —has been decided, the conclusions announced therein rendering it unnecessary to do more at this time with regard to many of appellant’s contentions than to cite the foregoing case.
Judgment affirmed.
Rehearing
On Petition for Rehearing.
When equity affords relief against a multiplicity of actions, it would be a violent presumption to say that the legislature, by statute, intended to provide a remedy that would encourage litigation and multiplicity of suits; that would enable a litigious party to recover costs and attorney’s fees over and over again, at his own election, in any number of actions, when the whole matter and every right he had could be determined in one suit. This would abrogate a rule, both of law and equity, as old as civil jurisprudence.
The record here shows that in the foreclosure proceedings against the abutting property, there was included as a part of the judgment an attorney’s fee equal to about ten per cent of the amount of principal and interest then due. Also in this proceeding a like amount for attorney’s fees was included in the judgment. It thus affirmatively appears that for the enforcement of a single assessment two attorney’s fees, aggregating ten per cent of the amount of each judgment, have been included in the judgments, and which the property owners are required to pay.
Appellant in this action' sought relief from this additional and unwarranted burden by moving to modify the judgment by deducting therefrom attorney’s fees. This motion was overruled. It is insisted that the judgment should not include attorney’s fees for two reasons: (1) That they are not asked or demanded in the complaint, and (2) because to do so would be to require appellant to pay two attorneys’ fees in one suit. There is merit in this contention, for the record shows that the basis of this judgment is the amount of the judgment of the first foreclosure, including interest and cost, and which judgment included, also, a specific amount for appellees’ attorney’s fees. I cannot in good conscience assent to what seems to me to be so unjust and inequitable a rule. If such a rule
I have taken occasion to examine the record in the case of Voris v. Pittsburg Plate Glass Co., supra, and I find that the appellant there had first foreclosed his lien against two abutting lots, had them sold under the decree and bought them in himself for just enough to pay and satisfy the costs. In his subsequent proceeding against the plate glass company he made no demand for attorney’s fees, and hence the question of his right to recover a second attorney’s fee was neither involved nor decided in that case. It is therefore not authority upon the question I have had under consideration. It may be the law that such lien holder can maintain successive actions to foreclose the same lien, and in each successive action claim and recover successive attorney’s fees, but if it is the law it is an unjust and inequitable one, and I feel that I am justified in expressing my disapproval of it. As the case of Voris v. Pittsburg Plate Glass Co., supra, however, rules this case as to to all questions there involved and decided, and I am bound by that decision, I reluctantly concur in overruling the petition for a rehearing: But if I had the power to declare the law, I would unhesitatingly hold that under the facts disclosed by this record the appellees are not entitled to recover in the second foreclosure proceeding additional attorney’s fees.
It is held in the ease of Voris v. Pittsburg Plate Glass Co. (1904), 163 Ind. 599, that successive suits may be brought. This being so, the right to recover
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The original opinion being based upon Voris v. Pittsburg Plate Glass Co. (1904), 163 Ind. 599, I concur in the conclusion that the petition for a rehearing should be. overruled.