59 Ind. App. 175 | Ind. Ct. App. | 1915
Appellant commenced this action against appellees for the possession of a certain tract of real estate, on the ground that he was the owner in fee simple thereof, and to have the amount of a lien growing out of a foreclosure proceeding, fixed, in order that he might discharge the lien on the real estate by paying to appellees or to the ones entitled thereto the amount found to be due. By the conclusions of law stated on the facts specially found, appellant was denied the relief sought, and from a judgment rendered against him he appeals. The questions presented for review arise upon the conclusion of law and the refusal of the court to grant a new trial upon written reasons filed, and as a matter of right.
The theory of appellant is that the foreclosure proceedings and sale as to the Tolleston Park Company were absolutely void for want of notice. On the part of appellee, Joachim Yoss, it is the contention as to this branch of the case that the foreclosure proceedings and sale divested the
. The conclusion we have reached on another branch of this cause makes it unnecessary to determine whether the record affirmatively discloses that a summons was not issued for the Tolleston Park Company, and returned as the statute provides, before resorting to constructive service, nor do we need to decide that if' there was a failure to issue summons and a return made thereon by the sheriff that there was no officer or person upon whom service could be had, that it would or would not be such an infirmity within the meaning of the authorities as to render the decree vulnerable to collateral attack for the want of jurisdiction.
*183 “Plaintiff avers that the said, defendant, Joachim Voss, on the 21st day of March, 1896, paid to the sheriff of said Lake County, Indiana, the sum of $783.15, as and for the purchase price of said real estate under said void decree of foreclosure as aforesaid. Plaintiff alleges that the court should determine the amount of the purchase money paid with interest and fix a time within which the plaintiff in this suit should pay the same and to whom it should be paid. All of which plaintiff alleges that he is willing and offers now to do. Wherefore, the plaintiff demands judgment for possession and that the court ascertain and determine what amount if any is due the defendants or either of them on account of the money paid at the sheriff’s sale herein referred to and that the court fix the time within which the plaintiff here shall pay the same and for all other proper relief. ’ ’
If the complaint is one for ejectment, being an action at law, a new trial as of right should have been granted, on the other hand, if the facts alleged state another substantive cause of action, that of an equitable remedy of redemption, then a new trial as of right was properly refused, the latter being a suit in equity. It has been frequently held that where the complaint states two substantive causes of action, which it may, in one of which a new trial as of right is demandable, and the other in which it is not, a new trial as of right should, be refused. Garrick v. Garrick (1909), 43 Ind. App. 585, 87 N. E. 696, 88 N. E. 104; Cambridge Lodge, etc. v. Routh (1904), 163 Ind. 1, 71 N. E. 148; Nutter v. Hendricks (1898), 150 Ind. 605, 50 N. E. 748; Wilson v. Brookshire (1891), 126 Ind. 497, 25 N. E. 131, 9 L. R. A. 792; Richwine v. Presbyterian Church (1893), 135 Ind. 80, 34 N. E. 737; Butler University v. Conard (1884), 94 Ind. 353; Bradford v. School Town of Marion (1886), 107 Ind. 280, 7 N. E. 256. In Bennett v. Closson (1894), 138 Ind. 542, 551, 38 N. E. 46, it was said, “As to the actions of redemption, subrogation, and foreclosure,
Many of the questions specifically presented by appellant’s able counsel, have not been discussed, for the reason they are covered in a general way by what we have said as to the ten-year statute of limitations being applicable to the facts as presented by the record, and mo useful purpose can be accomplished in extending this opinion by a specific discussion of the other questions.
There is no reversible error in the record. Judgment affirmed.
Note. — Reported in 109 N. E. 55. As to what are collateral attacks upon judgments, see 23 Am. St. 104. On the right of one in possession under void foreclosure sale as affected by statute of limitations, see 40 L. R. A. (N. S.) 846. See, also, under (1) 23 Cyc. 1077; (2) 23 Cyc. 1085, 1086; (3) 11 Cyc. 701; 23 Cyc. 1079; (4) 25 Cyc. 1030; (5) 29 Cyc. 1037, 1036, 1034.