80 Ind. 220 | Ind. | 1881
Lead Opinion
— The appellant’s complaint alleges that a judgment, obtained against her by the relator Slinkard, had been satisfied, and prays that any entry of'satisfaction may be made of record. The appellees answered by a general denial, and the parties entered into the following agreement: “We agree that all matters of defence that could be given in evidence under any form of answer or cross complaint may be given in evidence under the general denial, and that all matters that could be given in evidence under any form of pleading for plaintiff, by reply or answer to any cross complaint, may be given in evidence under the defendants’ general denial.” It was competent for the parties to make this agreement, and its provisions are obligatory. Every conceivable matter of defence is, by the terms of this agreement, admissible in evidence. The only question which can arise is, whether the evidence tends to establish a defence of any character whatsoever.
A single error is alleged, and that is assigned upon the ruling refusing appellant a new trial.
The appellees proved, by the sheriff of Lawrence county, the contents of a summons which had been issued to and served by him. This testimony was prefaced by proof of the loss of the w7rit. The court did not err in admitting this evidence. It is said by counsel that the court erred in permitting the sheriff to testify as to the contents of a written memorandum,
Francis Dugger, the sheriff of Greene county, was permitted to testify, over the. objection of the appellant, that no money was paid on the bid made at a sale upon an execution issued to him as sheriff, except enough to pay costs, and that the amount of the bid, less the costs, was credited on the execution. This testimony explained the receipts endorsed on the writ, and for that purpose was competent. Receipts may be-explained, varied or contradicted by -parol testimony.
A plaintiff who, in stating his cause of action, alleges the existence of a thing, will not be heard to aver in the course' of the cause, that the thing did not in fact exist. This rudimental principle disposes of appellant’s argument that there was no judgment; for, in her complaint, she expressly affirms that there was such a judgment. The theory of the complaint is, that there is a judgment, which appellant is entitled to have entered satisfied.
In a proceeding to compel satisfaction of a judgment, or to enjoin its collection, no enquiry can be made into the proceedings prior to the judgment, .except only as to whether the court possessed jurisdiction. If there was j urisdiction, then no matter how many, or how serious, the errors committed, the judgment will repel all such collateral attacks as the present. Even if the appellant were in a situation to question the validity of the judgment which she desires satisfied, the statement of this, familiar rule would be a complete answer to all the points made against it.
The only remaining question is whether the evidence shows, that the judgment has, in fact, been paid or satisfied. It appears that an execution was issued upon the judgment described in the complaint; that the execution was levied on real estate belonging to one of the execution defendants; that the exe
Judgment affirmed. .
Rehearing
On Petition por a Rehearing.
— It is argued that the appellant’s property should not be subjected to sale, because she wás not liable upon the instrument on which the judgment was founded. This question can not be considered in this collateral proceeding. The judgment is conclusive, both as to her liability
We can not enter into a consideration of the validity of the judgment, 1st, because the complaint affirms its validity; 2d, because this is a collateral proceeding and a party can only obtain relief from a judgment rendered by a court of competent jurisdiction, by a direct proceeding.
The record affirmatively shows that the levy was vacated by an order of the court, made upon the petition of the administrator of the person who owned the real estate at the time the levy was made, and that all the parties, having an interest in the execution and the land, were before the court. The judgment of a court, having jurisdiction of the subject-matter and of the person, vacating a levy, is conclusive. It is not important how the question came before the court, provided there was jurisdiction and a judgment.
The judgment upon a petition of an administrator for the sale of lands stands upon the same footing, so far as collateral attacks are concerned, as other judgments.
There is nothing in the judgment showing that appellant was a surety, and the rule declared in Johnson v. Harris, 69 Ind. 305, applies only where the question of suretyship has been judicially determined.
It is a familiar rule that a party must recover, if at all, upon the case made by his complaint. A plaintiff can not state one cause of action and recover upon another. The cause of action shown in the appellant’s complaint is, that the judgment described has been satisfied, and this it devolved upon her to establish. This she failed to do, for it is conclusively shown that the levy which she relied upon as a satisfaction of the judgment was no satisfaction. She made a prima facie case when she proved the levy and sale, but this was completely overthrown when it appeared that the circuit court, upon the petition of the administrator of the deceased judgment debtor, had vacated and annulled the levy.
Petition overruled.
