22 Ind. App. 617 | Ind. Ct. App. | 1898
Lead Opinion
— It is assigned as error that the complaint did not state facts sufficient to constitute' a cause of action. The complaint contained two paragraphs. The court in its special finding and judgment treated the case as an action against the appellants for the recovery of damages for the wrongful conversion to their own use of a certain stock of merchandise. The appellants were shown in the second paragraph of complaint to have obtained possession of the goods through purchase from others,, not parties, who had bought them and taken possession under a sale on execution against an owner of the goods, one Lindsey L. Ludwick, by whom they had been mortgaged to the appellees, before the issuing of the execution, to secure certain indebtedness of the mortgagor to the mortgagees. A copy of the chattel mortgage was filed with the original complaint, and was referred to in each paragraph as a part thereof marked as an exhibit; and it was alleged in each paragraph that the mortgage was duly recorded within ten days after its execution in the chattel mortgage record, the volume and page being specified, of Randolph county, Indiana, “the county in which said mortgaged property was situated at the time of the execution of said chattel mortgage.”
In the first paragraph of the complaint no mention was made of the sale on execution, but it was alleged that, subsequent to the execution and recording of the mortgage, the goods passed from the possession of said Ludwick into the possession of the appellants, under a pretended claim of ownership therein. We state no more of the contents of the lengthy pleadings than we deem proper for the decision of the particular question jnesented in argument before us.
The case having .been tried by the court below as an action in tort, the complaint is to be treated not as a complaint on the mortgage, and the mortgage can not be regarded as the foundation of the action within the meaning of the statute,section 365 Burns 1894, section 362 Horner 1897, which provides: “When any pleading is founded on
When the facts in this case* arose, and when the cause was pending below, it was provided by statute (section 4913 E. S. 1881, section 6638 Bums 1894), that nb 'assignment of goods by way of mortgage- shall be valid against any other person than the parties thereto, where such goods are not delivered to the mortgagee or assignee, and retained by him, unless such assignment or mortgage shall be acknowledged, as provided in case of deeds of conveyance, and recorded
Rehearing
On Petition for Rehearing.
Black, J. — It is urged on behalf of the appellees that the first paragraph of the complaint was sufficient as a complaint to foreclose the chattel mortgage, inasmuch as the copy of the mortgage filed as an exhibit sufficiently showed the residence of the mortgagor; and it is contended that our original opinion violates the familiar rule that the assignment in this court that the complaint does not state facts sufficient to constitute a cause of action attacks the complaint as an entirety, and cannot prevail if any paragraph of the complaint
In the case before us, the court stated its conclusions of law upon the facts found as follows: “And, as conclusions of law upon the facts found, the court finds that the defendants Daniel E. and Erank Diggs are liable to the plaintiffs for the value of said goods, wares, and merchandise commingled and mixed with other goods and merchandise of like character, and appropriated by them to their own use, covered by the plaintiffs’ mortgage, and so much of the value thereof as is sufficient to pay and satisfy the indebtedness to the plaintiffs secured by said mortgage, to wit, $525 thereof. Einding for plaintiffs in the sum of $525.” This was signed by the judge. The record showed the exceptions of the appel
Dissenting Opinion
Dissenting Opinion.
— The judgment of the lower court in this cause is reversed under an assignment of error that the complaint does not state facts sufficient to constitute a cause of action, the second paragraph of complaint being insufficient. I am. convinced that the majority opinion in this cause is manifestly wrong for two reasons: (1) The first paragraph of complaint is good, and therefore the assignment of error upon which the cause is reversed is not available; (2) the action of this court is an absolute nullity because the court has not jurisdiction of this cause under the statute which created the court.
As to the first reason: It is settled law of this State that if a complaint consisting of two or more paragraphs is attacked for the first time upon appeal by an assignment of errors, that the complaint does not state facts sufficient to constitute a cause of action, the attack will not prevail if either paragraph of the complaint states a cause of action. Murdock v. Cox, 118 Ind. 266; Louisville, etc., R. Co. v. Corps, 124 Ind. 427, 8 L. R. A. 636; Warden v. Nolan, 10 Ind. App. 334; United States Ex. Co. v. Rawson, 106 Ind. 215; Chicago, etc., R. Co. v. Daily, 18 Ind. App. 308.
In the case at bar the first paragraph of complaint sought to correct and foreclose a chattel mortgage. The prayer for relief, after demanding personal judgment for debts sued on, was as follows: “And plaintiffs ask that said chattel mortgage be corrected by fixing and supplying the year Anno Domini of its execution, and that said mortgage, .as re
The case of the United States Ex. Co. v. Rawson, 106 Ind. 215, is in all respects like the case at bar. In that case the record showed that the cause was tried upon and the verdict and judgment rested upon an insufficient paragraph of complaint; the complaint consisted of two paragraphs. The Supreme Court in that case say: “The complaint, consisting of two paragraphs, is assailed for the first time in this court by an assignment that it does not state facts sufficient to constitute a cause of action. It is conceded that one paragraph is good, but it is contended that as the record shows that the verdict and judgment rest upon the other paragraph, which, as claimed, is not good, the judgment should be reversed. Such an assignment calls in question the sufficiency of the complaint as a whole, and hence if there is one good paragraph? the assignment cannot be maintained. Louisville,
As to the second reason: The jurisdiction of all appeals is primarily in the Supreme Court. The Appellate Court has only such jurisdiction as is expressly given it by the legislature which created it. Ex parte Sweeney, 126 Ind. 583. The statute creating the Appellate Court does not give it jurisdiction of actions to foreclose mortgages, either upon real estate or chattels. Section 6562 Horner 1897. Thus this court in the case at bar has decided a cause of which it was not given jurisdiction by the act creating it. The judgment is a nullity. The Supreme Court in the case of Newman v. Gates, 150 Ind. 59, say: “Ho doubt, if the Appellate-Court should undertake to decide a cause of which it were: not given jurisdiction by the act of its creation, such decision, would he of no effect; and in that case the Supreme Court by-virtue of its power to protect its own jurisdiction might cause the appeal to he brought here for decision.” See, also, Ex parte Kiley, 135 Ind. 225; In re Pittsburgh, etc., R. Co., 147 Ind. 697.
Eor the reasons given, I think the petition for a rehearing ought to he granted, and the cause certified to the Supreme Court.