93 Ind. 495 | Ind. | 1884
— The appellant sued the appellee in the court below upon a/ judgment recovered December, 19th, 1877, by the former against the latter, in the court of common pleas
Prayer for judgment for costs and that said judgment sued on be declared fraudulent and void, and for all proper relief.
A demurrer to this pleading for want of sufficient facts to constitute a defence, was overruled.
A reply in denial having been filed, the cause was tried by jury, the verdict being for the defendant. A motion for a new trial was made by the plaintiff and was overruled, and judgment was rendered that the plaintiff take nothing, and that the defendant recover costs.
The assignment of errors questions the action of the court
If the answer had not shown fraud in the procurement of the judgment after the Ohio court obtained jurisdiction of the person of the defendant, the answer would have been insufficient, for while we think that if the plaintiff by his fraud induced the defendant to go within the jurisdiction of the Ohio court for the purpose of obtaining service of process upon the defendant, and the court’s jurisdiction of his person was thus obtained, the defendant would not need to appear in that court and show this abuse of its process, but might set up such fraud as a defence to the action brought in this State upon the judgment (Dunlap v. Cody, 31 Iowa, 260; 7 Am. R. 129), yet it was not shown by this answer that the plaintiff used any force or false representations or suppression of the truth for the purpose of getting the defendant within the jurisdiction of the Ohio court, or that he was induced to go within that jurisdiction by force or fraud. He went at the request of the plaintiff to defend against attachment proceedings instituted by the plaintiff against certain property, it not being shown that the defendant was the owner thereof and it not being shown that anything was fraudulently said or done with the intent to induce him to go within the jurisdiction of the court for the purpose of serving process upon him. We do not think that upon the facts here alleged the appellee could have sustained an action for damages on the ground of his having been fraudulently induced to leave his home and go to Ohio, or that he could have appealed successfully to the Ohio court to set aside the service of the process on the ground of a violation of the integrity thereof, or that the answer sufficiently shows a defence to the action on the judgment on the ground that jurisdiction of the person of the defendant was fraudulently obtained.
But that, without any fraud in the obtaining of jurisdiction, the equitable defence of the procurement of the judgment by fraud was well pleaded, is sufficiently settled. See
On the trial the appellant offered in evidence a certain paper, offering first to prove that it was a true copy of a letter taken by letter-press at the time the letter was written by the plaintiff, at the date thereof, in Cincinnati, Ohio, and placed in a sealed envelope and addressed to Nicholas Moschino, at Six Mile, Jennings county, Indiana, that being the defendant's address; that he put the letter so enveloped and sealed, with a three cent postage stamp on the envelope, in the post-office at Cincinnati, at the date given in the letter; that across and on the outside of said envelope he wrote the words, “ If not called for in ten days return to Coelestin Duringer, Cincinnati, Ohio;'' that said letter had never been returned to the appellant, whose address and home “ during all said period” was Cincinnati, Ohio. On objection byco'unsel for the appellee, this offered evidence was excluded.
Said letter had not been produced by the appellee, and no notice had been Served upon him by the plaintiff for the production of papers or letters from the plaintiff to the defendant, for inspection or to be used upon the trial; but it had been agreed in open court, in the hearing of the judge thereof, between counsel for the appellant and counsel for the appellee, that all papers or letters relating to the case in the possession or under the control of the appellee, would be produced before going into the trial by the appellee, without any notice for the production thereof; and the original of said letter had not been produced.
The letter-press copy so offered read as follows:
“ Cincinnati, March 15th, 1877.
“Me. Nice Moschino,
“ Hardenburg, Jennings County,, Ind.
“ I hereby notify you that you have not filed your answer in suit I brought against you in Cincinnati, in court of Hamilton county, Ohio. I will hereby tell you that I will give you time till the 1st day of May, 1877, to file your answer in*500 suit brought by me against you; or eome and settle your affair with me in a friendly manner; if not, I will be compelled to push the suit in court of Hamilton county, Ohio. Hope you will come and settle your affair with me.
“ Your friend,
“ Coelestin Dtjeingee.”
The evidence showed that the appellee was, on the 2d of February, 1877, served with process in said action in which the judgment sued on was rendered; that a default for failure to answer was entered on the 3d of March, 1877, and that the cause came on for hearing on the 9th of December, 1877, and the judgment was then rendered.
The appellee and another witness had testified that a few days after the appellee returned from Cincinnati he received a letter from the appellant, which was lost, in which he stated that he had ’dismissed the suit, and the appellee had testified that this was the only letter he received from the appellant after said return. The appellant had testified that he never wrote to the appellee, or to any one, that he had dismissed the suit, but that he had written him a letter on the 15th of March, 1877.
There can be no doubt that if the paper offered in evidence and excluded had been the original letter, it would have been error to reject it. The letter-press copy was secondary evidence'. Had the way for the introduction of secondary evidence been opened?
¥e think that proof of due notice from the appellant to the appellee to produce “ all papers or letters relating to the casein the possession or under the control of” the appellee, with sufficient evidence to charge him with the possession of this letter, and the failure of the appellee to produce it, would have authorized the introduction of the copy. 1 Whart. Ev.,. section 154 and note.
The agreement of the parties shown by the record was equivalent to such a notice, and in connection with the offer to introduce the copy there was an offer of evidence, sufficient,,
The only other question discussed by counsel relates to the giving of a certain instruction to the jury, in which the court construed a certain written contract. The contract was one in relation to cooper’s materials,'and contained expressions as to the meaning of which evidence would be admissible of usage of trade and of the course of business between the parties. In the absence of such evidence, it would be the duty of the court to construe the contract according to the ordinary meaning of the words, but so far as the meaning was affected by •evidence, that far the determination of the meaning should be left to the jury. Asa new trial must be granted for the error above indicated, we will refrain from saying what construction should be placed on the instrument if there should be no such evidence introduced, except, as above stated, that it should be construed according to the ordinary signification of the language. The judgment should be reversed.
Per Curiam. — Upon the foregoing opinion, it is ordered that the judgment be reversed, at the costs of the appellee, and the cause is remanded for a new trial.