73 Ind. 465 | Ind. | 1881
— This was, originally, an action to foreclose a mortgage on real estate, given by the appellants to one Daniel Dorrell, who assigned the same, with the mortgage
Hannah and wife filed a cross complaint, in which they alleged that Daniel Dorrell conveyed the lands in question to Milton Hannah, the maker of the notes, with full covenants of warranty, and agreed and promised to pay off the incumbrances thereon. Also, that when Daniel Dorrell assigned the notes to the plaintiff, the latter promised him, in writing, to pay said incumbrances ; that the $400 mortgage to the State was due; that Mary Scranton had filed her cross complaint, praying the foreclosure of her mortgage, and that Daniel Dorrell.was insolvent. Prayer, that all said incumbrances be taken into consideration ; that, when said lands should be sold, the proceeds should be applied, first, to the payment of the mortgage to the State, secondly, to all other liens, in the order of their priority; that, for the payment of such prior liens, Milton Hannah might receive a credit •and set-off against his note and mortgage; that the notes first maturing, to the amount of said payments, be declared paid and satisfied, and that he be relieved from further payment until the remainder, or a part of his subsequent notes, ■should become due. A copy of the agreement between William and Daniel Dorrell was filed with the cross complaint. It provided that William should pay the Scranton mortgage, and some other incumbrances, but was silent as to the school fund mortgage.
The portion of the decree defining the rights and obligations of the parties, touching said incumbrances, was as follows : “It is therefore ordered and adjudged by the court, that, if the plaintiff, William Dorrell, shall pay and discharge said liens, according to the terms of said agreement, then he .shall have his order of sale against said lands for the several amounts heretofore found in his favor, as each shall become, due ; but if said plaintiff, Doi’rell, shall fail to pay and remove said incumbrances, then, if the defendant Hannah shall pay The same, or if the lands shall be holden therefor, the said amounts are declared a credit on the notes and mortgage, sued on by said plaintiff, Dorrell, in favor of said Hannah, and said plaintiff, Dorrell, shall not have his execution or order of sale herein until said liens shall be paid off by him, or until a sufficient number of the notes of said Hannah shall have matured to equal the said sum of six hundred and forty-eight and dollars, due said Mary Scranton, and said sum of four hundred dollars, due the State of Indiana, with the interest thereon to the time of their satisfaction.”
The decree was silent as to the divisibility or non-divisibility of the mortgaged premises.
There was no motion for a new trial, no objection by either party to the decree, nor any motion to modify it.
The court then heard oral evidence as to the divisibility of the land, and also concerning the contract between Daniel Dorrell and Hannah, at the time the latter purchased the land, to the effect that Hannah was to pay the school fund mortgage, and that the amount thereof was deducted from the purchase-money.
To the introduction of the evidence relative to said contract the defendants objected, on the ground that that issue had been tried and determined at the previous term, and that judgment had been rendered in accordance with the finding. This objection was overruled and the defendants excepted.
The court then found and adjudged that the mortgaged premises could not be sold in parcels without injury to the interests of the parties, and modified its former decree as prayed for in the plaintiff’s motion.
But we think the court below erred in its action on the other branch of the motion. A case was not shown of an erroneous entry of what the com-t in fact found and adjudged at a previous term, but the motion sought to correct an “inadvertence and mistake” of the court in finding a fact .against the evidence in the case. In this respect the motion was made to perform the office of a writ of error. The .argument of the appellee in support of this proceeding is,
It is urged, however, that the oral evidence was harmless, because the decree itself disclosed that it was founded on a. misconception of the contract pleaded in Hannah’s cross complaint. But we can not say that the evidence so heard on the motion did not influence the court to change its decree. Before hearing this evidence it had decided one way, and after hearing it a different decision was rendered. We may remark further that the contract so pleaded is not identified as the contract referred to in the decree. That speaks of an agreement “introduced in evidence,” but does, not refer to it as the contract set out in the cross complaint.. Besides, the evidence on which the original judgment was-founded was not properly a part of the record, and it is-doubtful whether it should be considered. Davis v. Franklin, 25 Ind. 407.
After the term at which judgment is l’endered, a new trial can be had only on a complaint, and for causes discovered after the tei-m. 2 R. S. 1876, p. 183. The motion we have'-,
The bill of exceptions, as originally certified to this court, did not show that the court heard any evidence on the question of the divisibility of the mortgaged premises. After the appeal a motion was made in the court below by the appellee to amend the bill of exceptions in that particular. It was so amended, and on certiorari was certified, as amended, to this court. The appellant has assigned error on this ruling, having excepted to the action of the circuit court in ordering the amendment.
The original bill of exceptions was prepared by counsel for the appellant, and was filed in vacátion under an order-giving sixty days time for that purpose. In such a case, we think, the adverse party may afterward move for the correction of omissions or inaccuracies in the bill, so that it may speak the truth as to what took place on the trial.
If the motion to amend had been made by the party who prepared and caused the bill to be signed in the first instance, a different question would be presented.
— It is therefore ordered, upon the foregoing opinion, that the supplemental order and judgment of the Ohio Circuit Court, made at its April term, A. D. 1878, so far as it determined that the lands named in its former judgment could not be sold in parcels without injury to the in