50 Ind. 410 | Ind. | 1874
This was an action by Christopher C. Greenup, Samuel Greenup, and John Greenup against John
It was also alleged in the complaint, that the other persons named as defendants had judgments in the Carroll Common Pleas Court against the said John Brookbank, which had been rendered in proceedings to enforce mechanics’ liens, and which judgments the said persons claimed constituted liens upon said mortgaged property, and they were required to answer as to - their interest in such property.
John Brookbank and wife suffered a default, and judgment was accordingly rendered against them.
The appellees filed a joint answer, in which they alleged that each of them had recovered a separate judgment in the Carroll Common Pleas Court against the said John Brook-bank, upon foreclosure of mechanics’ liens, for work done and materials furnished in the construction of a building upon the mortgaged premises, the amount and date of each judgment being separately stated; that such materials were furnished and work done under a contract made with the said Brook-bank long before the said mortgage of the plaintiffs was executed," and before any debt had accrued which it was given to secure; that at the time the said mortgage was executed, the said Brookbank was only indebted to the plaintiff in the sum of five thousand dollars; that the note sued on, bearing date May 12th, 1866, was executed without any consideration whatever, and that by collusion between the plaintiffs and said Brookbank, at the time the said mortgage was executed, it was secretly held by the plaintiffs and kept from the record, with the fraudulent purpose of superinducing the completion of said building by the defendants, who were kept in ignorance
The prayer was, that the said mortgage should be decreed to be fraudulent and void, and for all other proper relief.
Two other paragraphs of answer were filed, which were the same, in substance, as the above, except they made no reference to the proceedings in the Carroll Common Pleas Court.
Demurrers were overruled to each paragraph of the answer.
The appellants replied in three paragraphs. The first in denial. Second, that the notes and mortgage were executed by said Brookbank in good faith, and were by the plaintiffs received in good faith, to secure to the plaintiffs the amount of money expressed therein; that the note for five thousand five hundred and sixty-five dollars and seventy cents was executed, to secure the amount therein named, at and before that time due to them; that the said note for two thousand four hundred and thirty-four dollars and thirty cents was executed to them, to secure in part cash then advanced to him, and in part to secure money which the plaintiffs then obligated themselves to pay and advance to the said Brookbank, for the purpose of enabling him to construct said building, which money the plaintiffs obligated themselves to pay and advance to the said Brookbank as fast as he would need the same in prosecuting said work; and that, pursuant to said agreement, the plaintiffs did in good faith furnish to said Brookbank, on and before the 1st day of July, 1866, said money, which has been ever since justly due and owing to them.
The third paragraph was as follows :
“ The plaintiffs, for further and third paragraph of reply to the several amended answers of'defendants Grant and Crooks, and of the defendants Miller and McElhaney and the McClures, and of all of said defendants answering jointly, say that in said cause adjudicated in the Carroll Common Pleas Court,
A demurrer was sustained to the third paragraph of the reply.
The cause was submitted to a jury for trial, and resulted in a general verdict in favor of the appellees. The jury also returned answers to special interrogatories submitted to them.
The appellants moved the court for judgment in their favor
It is proper that we should at this point give a history of this case. The action was commenced in the Carroll Circuit Court. The venue was changed, and the cause was sent to the Cass Circuit Court. In that court the cause was tried by a jury, and resulted in a verdict for the appellees. The court granted a new trial. The cause was, by the agreement of the parties, sent back to the Carroll Circuit Court for trial. On the 25th day of February, 1873, that being the fourteenth judicial day of said term, the Hon. Dudley H. Chase, the judge of said court, having been of counsel in this cause, appointed the Hon. John IT. Pettit, judge of the twenty-second judicial circuit, to preside at the trial of this cause. On the 26th day of February, 1873, that being the fifteenth judicial day of said term, Judge Pettit appeared, and the cause was submitted to a jury for trial. On the 1st day of March, 1873, that being the eighteenth judicial day of said term, the jury returned into court their general verdict and answers to interrogatories submitted to them. The February term, 1873, commenced on the 10th day of February, 1873. The court was authorized to continue, if the business required it, three weeks.
The February term expired on the 1st day of March, 1873. It does not appear from the record that any further action was had in this cause after the verdict of the jury was returned. Nor does it appear that any order was made adjourning the term to a day in vacation. The next entry in the transcript is as follows:
“And afterward, to wit, on the nineteenth judicial day of the February term, 1873, the same being the 14th day of March, 1873, the following proceedings were had in said cause, to wit
Then follow motions for judgment on the special findings, notwithstanding the general verdict, and for a new trial, which were overruled, and appellants excepted.
Here terminate the proceedings in this cause at that time.
The motion was overruled, and appellants again excepted.
Then follows the decree of the court. After the rendition of the judgment, the appellants tendered two bills of exceptions, which were signed by the judge, and have been copied into the transcript by the clerk.
"When the February term, 1873, of the Carroll Circuit Court expired, there being no order adjourning the cause to a day in vacation, the authority of Judge Pettit, as judge pro tem:, terminated, and the cause went back on the docket for the next regular term of said court. Glenn v. The State, ex rel. Clore, 46 Ind. 368, and authorities there cited.
Section 354, 2 G. & H. 15, provides, that “ the application for a new trial must-be made at the term the verdict or decision is rendered.” Such has been the ruling of this court. Hufford v. The State, 6 Ind. 365; Smith v. Thornburgh, 7 Ind. 144; Robertson v. Bergen, 10 Ind. 402; Stanley v. Peeples, 13 Ind. 232; White v. Perkins, 16 Ind. 358; Shover v. Jones, 32 Ind. 141; McNiel v. Farneman, 37 Ind. 203; Sanders v. Boy, 45 Ind. 229.
The motion having been made after the adjournment of court, and when there was no legal court in session, the case must stand as though no motion for a new trial had been made. As there was no motion for a new trial, we cannot consider any error of law which occurred on the trial. But the bill of
The only questions presented for our decision relate to the action of the court in overruling the demurrers to the several paragraphs of the answer, and in sustaining one to the third paragraph of the reply, and in overruling the motion in arrest of judgment.
It is contended by counsel for appellants, that the judgment of the Carroll Common Pleas estops the defendants from setting up as a defence the invalidity of the mortgage sued on, and that such question is raised by demurrer to such'answers. It is settled that an estoppel in pais must be pleaded as a defense. Wood v. Ostram, 29 Ind. 177. It is also settled that where an estoppel by record plainly appears upon the face of a complaint or answer, it is not necessary to set up the estoppel by answer or reply, but it may be raised by demurrer. Trimble v. The State, 4 Blackf. 435; Sammons v. Newman, 27 Ind 508; The German Mut. Ins. Co. v. Grim, 32 Ind. 249.
The case of Gavin v. Graydon, 41 Ind. 559, is apparently in conflict with the views above expressed, but is not so in reality. That was an action to recover possession of real estate, where, under the general issue, every defence, legal or equitable, is admissible. In that case a distinction is drawn between an estoppel by record and the conclusiveness of a judgment.
It is not necessary for us to decide whether the question of estoppel relied upon by appellants is presented by the demurrer to the answer, as the question is undoubtedly raised by the demurrer to the third paragraph of the reply. We shall, therefore, consider the sufficiency of the answers, independent of the question of estoppel
There is much in each paragraph of the answer which should
We proceed to consider the question of estoppel raised by the demurrer to the third paragraph of the reply. The action in the common pleas court was brought by the appellees against John Brookbank, to enforce their liens as mechanics against the property- mortgaged, and the appellants were made defendants to answer to their interest in such property. The complaint in that action contained the following reference to the appellants and the mortgage sued on:
"That on the 12th day of May, 1866, the said defendant John Brookbank executed to the said defendants Christopher C. Greenup, John Greennp, and Samuel Greenup, by the name and description of C. C. Greenup & Brothers, a mortgage on said ground, to secure to them the payment of the sum of eight thousand dollars, which mortgage appears of record unsatisfied.”
The prayer of the complaint was this:
" Wherefore they pray for a judgment for two thousand dollars, and for the enforcement of the said lien for the payment thereof, and such other relief against the defendants as may be just and proper.”
The appellants appeared and answered as follows:
“ That they admit all the allegations in said complaint contained. The said defendants further say, that the notes due them by the said John Brookbank for the sum of eight thousand dollars, to secure the payment of which the mortgage as set forth in said complaint was given, are due and wholly unpaid, and that a copy of said mortgage, marked (C/ is filed herewith and made part oí this answer, to wit:” (We omit
“ Wherefore they pray that any judgment that may be rendered herein in favor of the said plaintiffs may be made subject to the prior lien of the defendants answering herein, and that the court will decree that their claim shall be first paid and satisfied out of the proceeds of the said premises, and for other proper relief.”
The appellants filed a similar answer to the cross complaint of Miller, McElhaney, and the McClures, who were admitted defendants, and filed a cross complaint asking the enforcement of mechanics’ liens against the property mortgaged, in which cross complaint the same allegations were made in reference to said mortgage as those quoted from the original complaint.
The cause was submitted to the court for trial. The court found the amount due to the several persons who were seeking the enforcement of mechanics’ liens against the mortgaged property, and that such sums were liens upon said property, subject, however, to the prior lien.of the mortgage of the appellants. The court in its decree provided that said property should be sold on execution, 'subject to the mortgage of the appellants, and that the proceeds arising from such sale be applied first to the payment of the judgments in favor of the appellees, and then on a subsequent mortgage, and finally on a subsequent judgment, and in the event that there was not enough to pay the judgment of the appellees in full, then their claims were to be paid pro rata.
It is contended by counsel for appellants that the judgment of the Carroll Common Pleas conclusively settled all of the rights of the parties as they then existed, and that such matters cannot be inquired into again in the present action, and in support of this position reference is made to the following authorities: 1 Greenl. Ev., sec. 528; Kitchen v. Campbell, 3 Wils. 304; Walker v. Chase, 53 Me. 258; Hyatt v. Bates, 35 Barb. 308; Simpson v. Hart, 1 Johns. Ch. 91; Holmes v. Rem-
Counsel for appellees -admit the doctrine of estoppel and' the conclusiveness of judgments as contended for by counsel for appellants, and as settled and illustrated in the foregoing authorities, but they insist that such doctrine has no application to the present case, for the reasons that a former judgment or decree of a court of competent jurisdiction is conclusive only of such facts as were directly in issue in such former suit and were decided by it, and were necessary to uphold it; that facts found by a former decree which were not necessary to
A majority of the court are of the opinion that the decree
The judgment is reversed, with costs, and the cause remanded, with directions to the court below to overrule the demurrer to the third paragraph of the reply, and for further proceedings in accordance with this opinion.