32 Ind. App. 265 | Ind. Ct. App. | 1904
This was an action originally commenced by James B. White to revive a judgment entered in his favor in the Allen Circuit Court on October 25, 18^6. The judgment was on four notes executed to him by James E. Godfrey and Archange Godfrey, and for the foreclosure of four mortgages given to the said White by James E. Godfrey and Archange Godfrey, his wife, on real estate owned by the wife, whifch mortgages were
The appellants answered the complaint in three paragraphs. The first paragraph of answer was a general denial. The second alleged, in substance, that Archange Godfrey, deceased, who was the owner of the real estate described in the mortgages, executed them as security for
A reply of general denial was filed by the appellees. A cross-complaint was filed by Carrie S. Alden, in which the same averments were made, as constituting a ground for revival of the judgment, as were stated by the appellee "White in his complaint. The answers filed by appellants to the cross-complaint of Carrie S. Alden were, with the exception of the fourth, the same as were filed to the complaint of the appellee "White. The fourth paragraph of answer to appellee Alden’s cross-complaint averred that the assignment of the interests set up in the cross-complaint were procured to be made to her by Samuel E. Alden, her husband, and that he paid the only consideration that was ever paid the assignors, or either of them, therefor, by rendering services as their attorney in transactions between them and said Archange Godfrey in her lifetime, and the further payment by said Alden to each of them of the amount of $50; that said payments were made while the said Samuel E, Alden was acting
The trial was hy the court, and resulted in a finding and judgment for the appellee White and for- the cross-complainant Carrie S. Alden that they were entitled to a revival of the judgment, and an order of sale for the enforcement of the decree of foreclosure, and that execution issue thereon for the amount of the former judgment and decree, with interest from its rendition; and it was ordered that a copy of the original decree and of tho decree thus rendered be issued hy the clerk, and that the lands described in said decree, containing 320 acres, or so much thereof as might he necessary, he sold, without relief from valuation and appraisement laws, and the proceeds applied in the payment of the costs of the former suit and'of this suit, and of the amount of the judgment and decree so ordered to he revived, together with interest thereon from tho 25th day of October, 1876.
The principal question to be determined in this appeal is whether or not the trial court had jurisdiction of tho defendants in the suit wherein the original judgment was rendered. It is not, of course, denied hut that the court had jurisdiction of the subject-matter of the action; hut the claim of counsel for appellants is that the judgment was rendered without the court having jurisdiction of the defendants, because it is asserted that the record does not show that any summons was ever issued iu the action wherein the judgment was rendered and served on the
In Castetter v. State, ex rel., 112 Ind. 445, the court said: “Since it appears that judgment was rendered by a court of competent and general jurisdiction,, we must presume, in favor of the regularity of its proceedings, that the court had, by notice duly served or by an appearance in court, acquired jurisdiction over the person of the relatrix. This is according to the rule that where a proceeding in a court of general or superior jurisdiction is of such a character that upon final action the court should, from the nature of the case, ascertain whether it is such in fact that it has jurisdiction to act, as it is invoked to do, and it does so act, its judgment, can not be collaterally questioned, unless it affirmatively
In First Nat. Bank v. Hanna, 12 Ind. App. 240, it is held that the presumption is that a court of general jurisdiction had jurisdiction of a person who seeks to set aside its decree, whether such decree contained a recital of jurisdictional facts or not, the court saying: “The court will be presumed to have done its duty, and this includes the presumption that all parties affected by said judgment and decree were properly before it, and were duly served with process.”
In the early case of Horner v. Doe, 1 Ind. 130, 48 Am. Dec. 355, the court said: “That where the record discloses nothing upon the point, jurisdiction of the person and of the subject-matter will, the contrary not being proved, be presumed, in eases of domestic judgment of courts of general jurisdiction, where they come collaterally in question.”
In the ease of Crane v. Kimmer, 77 Ind. 215, the court said: “In the case of Cole v. Allen, 51 Ind. 122, the record did not show that any process had been served, and there was no process appearing in the record; for which error the cause was reversed. The court held in this case, and others, that, when the judgment is by default, the record must contain the process,- with the- return of the sheriff of service indorsed thereon, to show that the court had jurisdiction of the defendants, or, upon an appeal, the'judgment will be reversed. ' [Citing cases.] This is where the judgment is brought in review by appeal. But, where the judgment is collaterally attacked, a different rule obtains. In that case, if the record states that process has been duly served, that is sufficient; or, if the record says nothing about the process, the circuit court being the court of general jurisdiction, it will be presumed that process had been duly served, and that
In the case of Comparet v. Hanna, 34 Ind. 74, which was an action to revive a judgment by writ of scire facias, where it affirmatively appeared upon the face of the record of the judgment sought to be revived that the court rendering the judgment had not acquired jurisdiction of the judgment defendants in any way — the court holding in effect that such a proceeding would be void as against the judgment defendants upon a proper plea by them— the court said: “When, however, the judgment or proceedings of a court of general jurisdiction come collaterally in question, and the record discloses nothing upon the point, jurisdiction of the person, the contrary not being shown, will be presumed.”
In Harman v. Moore, 112 Ind. 221, the court said: “Where the record of a court of general jurisdiction, either affirmatively or by the presumptions which attach to it, shows that the judgment has been rendered against a party over whom the court had acquired jurisdiction, any attack, the sole purpose of which is to have the judgment declared void by showing facts and circumstances dehors the record, is a collateral attack. It has often been decided that such an attack can not be successfully made by a party to the judgment.”
Under the settled rule of law, as applied to the facts shown by the record in the case at bar, the presumption must be indulged that the court had jurisdiction of the judgment defendants, and that the judgment so «rendered can not bo attacked in the manner here attempted by a party to the record. The answers in this ease, which seek to set up as a defense to the action that the court had not jurisdiction to render the judgment, were held sufficient by the trial court, and this action of the trial court is not questioned upon appeal. Whether or not the answers stated a defense, they at least formed an issue
In the case of Brake v. Stewart, 88 Ind. 422—it being a case where the defendant was not served with summons, and did not personally appear — the Supreme Court said: “But in the present case the complaint shows that the court had jurisdiction of the subject-matter of the foreclosure suit, and the record shows that the judgment, was in accordance with the relief demanded; and the record contains also the following statement at the end of the judgment: 'And it is agreed by the parties that execution shall not issue herein for six months unless ordered by said Elisha Stewart.’ It appears by this statement that the parties were in court, recognizing the validity of the judgment by making an agreement for a stay of execution; this sufficiently shows jurisdiction of the court over the persons of the defendants; it shows that they were present in court at the rendition of the judgment, and agreeing to its terms with the proviso for a stay of execution.”
Neither the power or authority of - D. H. Colerick as the attorney for Archange Godfrey was questioned, and his appearance for her was prima facie evidence of his
It is also contended hy counsel for appellants that the description of the real estate in the mortgage and decree is so defective as to render the judgment of no effect. The description of the real estate is clearly sufficient. The sheriff of the county could readily ascertain the parcel of real estate ordered to he sold hy him, and the surveyor could easily locate it. This being true, the description was sufficient, under the decisions of our courts. Collins v. Dresslar, 133 Ind. 290, and cases cited; Edens v. Miller, 147 Ind. 208; Stevens v. Flannagan, 131 Ind. 122.
We have carefully examined all the questions raised hy counsel for appellants presented hy the record 'in this ease, and find no reversible error. Judgment affirmed.