De Armond v. Adams

25 Ind. 455 | Ind. | 1865

Gregory, J.

Adams, as guardian of the heirs of Kanway, .filed his complaint in the court below, in July, 1864, against Thomas DeArmond, Joseph DeArmond, Louisa J. DeArmond, Sanford Elliott, John E. Robins, Robert Armstrong, William Perkins and Omer Tousey, to foreclose a mortgage executed •by Thomas and Louisa -J. DeArmond to Perkins, to secure the payment of a note of $500, payable to Perkins as .guardian of the Kanway heirs, and a note of $400, payable to Perkins in his own right. In August, 1859, one Crissman, who was then the owner in fee, mortgaged a portion of the land embraced in the mortgage in suit to Thomas DeArmond. In September, 1860, Crissman conveyed to him by warranty •deed, the land he had before mortgaged, together with other land included in the mortgage in this suit, in satisfaction and discharge of the- mortgage debt from Crissman to DeArmond. In January, 1861, the mortgage in suit was executed, embracing the land conveyed by Crissman to DeArmond. There were several notes secured by the mortgage from the former to the latter, one' of which was held by Elliott, and others by Tousey. On the 21st of November, 1861, Elliott filed his complaint in the Jennings Common Pleas against Crissman and Tousey, to foreclose the mortgage from Crissman to DeArmond, and at the November term of that year obtained a decree, and upon an order of sale issued thereon the mortgaged premises were sold on the 6th of January, 1862, to Robins and Armstrong, and Tousey assigned to them his interest therein. The complaint charges that at the time Elliott and Tousey took the Crissman notes and mortgage,theyknewthatthe debt secured thereby had been satisfied and paid; that at the time suit was brought by Elliott against Crissman and Tousey, and when jrrclgment was obtained thereon, and when the sale was made to Robins and Armstrong, and when Tousey made his assignnaent to them, all these various parties had notice that the mortgage debt had been paid; and. that the decree and sale thereunder were fraudulent and. void as against the Planway guardian. The suit was dismissed as to Tousey. Perkins answered, setting up his note, secured by the mortgage, and a judgment was rendered by default as to the other defendants. Thomas, Louisa J. and Joseph De-Armond, Elliott, Pobins and Armstrong assign errors against Adams and Perkins: 1. That a decree and judgment by default was taken against the appellants without any sufficient service of process. 2. That the decree is contrary to law, and the judgment invalid and against law and equity. 3. That the judgment and decree, so far as it undertakes to make void a judgment of the Jennings Common Pleas, is invalid and contrary to law.

It is urged that the service of process on Elliott was insufficient. The sheriff returns that he “ served the process by leaving a certified copy of the original.” The affidavit of the sheriff who served the process on Elliott is filed in this court, in which he swears that the copy was left “ at Elliotfs usual and last place of residence,” and a motion is made in this court to amend the return. The true practice in such a case is for both parties to go to the court below, the defendant to move to set aside the judgment by default, which may be met by the plaintiffs’ motion to amend the sheriff’s return.

It is claimed that the Circuit Court had no power to declare the decree of the Court of Common Pleas fraudulent and void as to Adams and Perkins. The cases of Woolley v. Woolley, 12 Ind. 663, McQuigg v. McQuigg, 13 Ind. 294, and Rindge v. Rindge, 22 Ind. 31, are relied on to sustain this position. These were all cases in which the party seeking to set aside the judgment was a party to the record. In the case in judgment, Adams and Perkins were not parties to the proceedings in the Common Pleas-Court. The true rule on this subject was stated by Lord Chief Justice Willes in Prudam v. Phillips, cited by Chief Justice Shaw in Greene v. Greene, 2 Gray 361. He said that “whatever objections would avoid a judgment in a court of common law, would be sufficient to overturn a sentence in the spiritual court, but none others. That fraud was a matter of fact, and if used in obtaining a judgment was a deceit ou the court, and hurtful to strangers, who, as they could not come in to reverse or set aside the judgment, must of necessity be admitted to aver it was fraudulent.” If the decree of the court below is wrong for the second error assigned, the remedy of the party injured is not by appeal to this court, but by proceedings to review the judgment. 2 G. & H., § 587, p. 280.

J. S. Scobey, for appellants. E. W. Kimball, for appellees.

The appeal is dismissed, with costs.