Flynn v. Northam

44 Ind. App. 333 | Ind. Ct. App. | 1909

Hadley, C. J.

The complaint in this action avers that appellant’s decedent was, upon the complaint of appellees, adjudged a person of unsound mind; that thereafter, on June 19, 1899, upon complaint of said decedent, for review of said judgment, the same was set aside, and a second trial had on the original complaint, at which trial said decedent was found to be of sound mind, and the costs were adjudged against appellees. This judgment was rendered on November 7, 1900. It then avers that the costs of the proceeding to review were taxed by the clerk at $149.25; that the costs of the trial of the original action were taxed by the clerk at $355.70, and that the costs of the guardianship were $23, with interest thereon from date of said judgment, and that said costs have not been paid to decedent or to plaintiff; that in entering said judgment the name of appellee Helen Carver was entered as “Ellen Carver.” Prayer for correction, that said judgment be adjudged to be against appellees and revived in the sum of $527.50, with interest, amounting to $685.75, and that the appellant have execution thereon. A demurrer of appellees was sustained to this complaint. Appellant refused to plead further, and judgment was rendered against him.

1. As the action was brought before the expiration of ten years, it is not within the provisions of §717 Burns 1908, §675 R. S. 1881. Moreover, the averments of the complaint show that the purpose of the proceeding is to have a new judgment upon the authority of the old. The prayer is for a judgment different in form, and apparently in amount, from the original. The original judgment was uncertain as to amount and incorrect as to the name of one of the judgment creditors, and by this proceeding appellant not only seeks to correct and make certain what in the former judgment was incorrect and uncertain, but seeks to recover a judgment in a greater sum than that exhibited in the judgment he counts upon.

2. That this is the intent and purpose of the proceeding is virtually admitted by appellant in his brief, when he says: “The judgment ought to be revived, being for costs and dependent on the taxation by the clerk, the amount could be determined more satisfactorily under the direction of the court.” This is not a revivor but a proceeding to recover a new judgment. In suits for revivor of a judgment, nothing new can be added to the dormant judgment, except life with authority to issue execution.

3. The complaint is not sufficient as a scire facias for the reasons before given, and for the further reason that it does not aver nor show that the judgment is unsatisfied. There is an averment that the amount of the judgment has not been paid to appellant or appellant’s

decedent, but this is not sufficient. The judgment might be satisfied in many ways without paying the sum to appellant or appellant’s decedent. A writ of scire facias must show a right to the relief asked. Hicks v. State (1842), 3 Ark. 313; Underhill v. Devereux (1682), 2 Saund. 71, note 4; Panton v. Hall (1689), 2 Salk. *598; McVickar v. Ludlow (1826), 2 Ohio 246; 1 Black, Judgments (2d ed.), §486; 2 Freeman, Judgments (4th ed.), §444.

The demurrer was properly sustained. Judgment affirmed,