191 Ind. 354 | Ind. | 1921
Lead Opinion
This was an action by the appellee upon a personal judgment recovered by it against the appellant, on October 8, 1915, in the United States District Court at Chicago, Illinois. Demurrers were sustained to each of the first and second paragraphs of appellant’s plea in abatement, and he excepted. He then filed an answer of general denial, three paragraphs of cross-complaint (by way of set-off) and one of counterclaim, to each of which the appellee replied by a general denial, and also by an affirmative plea of former adjudication. Upon the issues thus formed the cause was submitted for trial to a jury who, by direction of the court, returned a verdict in favor of the appellee, upon which final judgment was rendered in its favor for $11,395.50 and costs.
The appellant filed his motion for a new trial for many alleged reasons, of which the specifications not waived are: (a) That the verdict is not sustained by sufficient evidence and is contrary to law, and (b) that the trial court erred in directing a verdict in favor of the plaintiff, and (c) in refusing to admit in evidence certain contracts, including the one on which the respective demands of appellant and appellee against each other were originally based, and (d) in refusing to admit oral testimony by appellant that said contract was breached by the appellee, and (e) in excluding further
The substance of the amended complaint was that appellee was a corporation of Illinois, and that on November 16, 1907, it commenced in the municipal court of Chicago an action against- appellant, which appellant procured to be removed to the district court of the United States, in which issues were made up that were duly tried, resulting in a verdict in favor of appellee against the appellant for $10,000, on which said court, on October 8, 1915, rendered the judgment sued on, and that said judgment remained unsatisfied, and in full force and effect.
The substance of the first paragraph of appellant’s plea in abatement was that the appellee corporation failed, at a time not stated, to make a report of a kind and character not stated, in accordance with the provisions which are stated only in part, of a statute of Illinois that took effect July 1, 1901, entitled: “An act requiring corporations to make annual report to the Secretary of State, and providing for the cancellation of Articles of Incorporation for failure to do so, and to repeal a certain Act therein named”; that “the said State of Illinois did by reason thereof, and under and in pursuance of the laws of the State of Illinois, aforesaid, on said 20th day of March, 1911, forfeit, cancel, and terminate the charter of said pretended corporation;” and “that the charter of said plaintiff as such pretended corporation was on the 20th day of March, 1911, forfeited and terminated by the State of Illinois, and by the consideration and judgment of the Secretary of State of the State of Illinois,” acting under said statute, which “judgment and order of said Secretary of State of Illinois, canceling and forfeiting the charter
It was further alleged that the “said act provided that a failure to make said report and to pay said fee therein named, shall be prima, fade evidence that said corporation is out of business, and so work a forfeiture of the charter of said corporation, and shall make it the duty of the Secretary of State to enter upon the records of his office an order canceling the charter of any and all corporations failing to make the report as required by the laws of the State of Illinois.” The foregoing is all that appears in the plea as to the provisions of the statute in question.
The second paragraph of the plea in abatement alleged the same facts as the first paragraph, with the additional averments “that it is further provided by the laws of the State of Illinois that all corporations organized under the laws of the State of Illinois, whose powers may have expired by limitation or otherwise, shall continue their corporate capacity, during the term of two years, for the purpose of collecting the debts due said corporation, and selling and conveying the property and effects thereof,” and that the suit now under consideration was not commenced until more than three and a half years after the date when the secretary of state entered the alleged order of cancellation. But the second paragraph, like the first, does not purport to set out all of the law of Illinois on the subject under consideration, nor does it negative the possibilities suggested above when discussing the first paragraph. The demurrer to it was properly sustained.
Each paragraph of appellant’s cross-complaint, and also his counterclaim, counted upon an alleged contract by which appellant bargained to purchase from a third person a certain lot in the town of Gary, for which he was to pay a stipulated price .and erect a business block thereon within a time limited, and a certain other contract by which appellee agreed with appellant that it would erect the required building on such lot within said time, setting out both of the alleged contracts as part of each of the pleadings; and each paragraph alleged that the appellee failed in a designated particular
To each paragraph of the cross-complaint, and to the counterclaim, the appellee filed an answer to the effect that in the action in the district court of the United States, at Chicago, in which the judgment sued on was recovered by the appellee against the appellant, each and all of the matters alleged in said paragraphs of cross-complaint and counterclaim were pleaded by the appellant and put in issue by pleadings filed therein by the parties, and were fully adjudicated in that suit.
The appellant replied by a denial, and by a plea that each and all of the matters so pleaded by him in this action, which were alleged and set up by him in the said action in which the judgment sued on was recovered, “were each and all withdrawn from the consideration of the court and jury in said cause, and that no evidence was admitted in said cause as to each of said several matters * * * and that none of said alleged matters mentioned * * * were submitted to the jury * * * and that neither of the matters or causes of action alleged and set up * * * herein were submitted to or determined by the jury in said cause,” etc.
This cause was thereupon submitted to a jury for trial upon the issues formed on the said pleadings. The appellee read in evidence a transcript of the proceedings in the district court of the United States at Chicago, which recited that the action was commenced in the municipal court by appellant by filing a “common count” for goods sold, labor done, materials furnished, etc., and that upon appellant’s petition the cause was then transferred to the district court of the United States; that thereafter an “amended first additional
It further recited that the appellant pleaded the general issue, and pursuant to the practice in Illinois, filed notices of special matters of defense, in which he specified the alleged breaches by appellee of the same building contract on which his pleadings in the action at bar are founded, which contract was set out at length in such specifications, as it is also in appellant’s several paragraphs of cross-complaint and counterclaim in this action, purporting to be based thereon.
In fact, the language of the different “specifications” recited in the said transcript, as read in evidence, is almost identical with the language of appellant’s pleadings in this case.
The transcript also recited that a verdict for $10,000 damages, in favor of the appellee as against the appellant, was returned in said district court of the United States, on July 7, 1915, and that thereafter on October 8, 1915, the court rendered the judgment sued on, for that amount. The appellee also offered evidence that under the law of Illinois the judgment drew interest from the date of its rendition at the rate of five per cent, per annum, in an amount as stated. It also read in evidence certain statutes of Illinois to the effect that a defendant may plead as many matters of fact in sev
Except for a few facts concerning the appellant and -where he lived and what he had been engaged in, which had no direct bearing on the matters in issue in the case at bar, the appellant introduced no evidence, all of the evidence offered by him being excluded by the court. The transcript of the judgment, being uncontradicted, was clearly sufficient to sustain the verdict in appellee’s favor on the issue formed on the complaint and answer of denial. And no evidence having been heard by the jury tending to prove the allegations of any paragraph of the cross-complaint or the counterclaim, of all of which the appellant had the burden of proof, the court properly directed a verdict in favor of the appellee as to the issues formed thereon, and such verdict is sustained by the evidence. The fact that appellant’s failure to introduce any evidence was due to the refusal of the court to admit what he offered does not make the evidence introduced by appellee any less sufficient to sustain the verdict. And so long as appellant’s pleas of set-off and counterclaim remained wholly unsup
Appellant has cited certain authorities to the effect that the notices of special matters of defense filed with appellant’s plea of general denial, stating facts which properly might have been pleaded specially by way of set-off or counterclaim, were not subject to demurrer, and differed in other respects from pleadings. But it cannot be questioned that under the provisions of the statutes of Illinois above referred to they so far put in issue the facts therein stated that appellant’s right to a set-off or counterclaim by reason of such facts “might have been litigated in the case” which was decided by the district court of the United States. To that extent the notices filled the same office and had the same effect as special pleas alleging the facts therein stated. Sherman v. Dutch (1855), 16 Ill. 283; Miller v. Miller (1855), 16 Ill. 296; Gilmore v. Nowland (1861), 26 Ill. 201; Patterson v. Steele (1864), 36 Ill. 272; Hibernian Bank Assn. v. Eekhart & Swan Mill. Co. (1908), 140 Ill. App. 479; Heisen v. Churchill (1910), 179 Fed. 828, 103 C. C. A. 320. And if the issues thus formed were sub
The record which was read in evidence recited that after the filing of the amended complaint and appellant’s answer of denial and notices of special defenses by way of set-off and counterclaim, in the United States Court, the cause was submitted to and decided by the jury, and that final judgment was rendered on the verdict of the jury. And it does not show nor even intimate that any of these notices of special defenses were ever withdrawn or dismissed. Therefore it was not error to exclude the building contract when offered in evidence.
The trial court properly excluded all of this evidence. The appellant having filed a plea and notices in the United States Court by which he presented to that court for determination an issue as to whether or not he was entitled to recover certain demands by way of set-off and counterclaim, and having submitted his case for trial and decision without withdrawing the plea or any of the notices by which that issue was presented, a decision against him covered what “might have been litigated” under the issues formed on such pleadings, whether he offered any evidence to support the facts alleged in his “notices of special defenses” or not. And
The judgment is affirmed.
Rehearing
On Petition for Rehearing.
The decision of this court must be based upon the law of Indiana, as applied to the facts of the case, among which facts are the laws of other states so far as those laws are pertinent and within the issues, and are proved by competent evidence. But it cannot consider facts not pleaded nor proved and not within its judicial knowledge.
Many pages of appellant’s petition for a rehearing are devoted to asserting what is the law of Illinois, and explaining wherein appellant believes it to differ from the law of Indiana, and from what this court assumed to have been the law under which the original case was tried in the United States District Court. But in the absence of any pleadings putting such law in issue, or any evidence tending to prove whát it is, we cannot assume that it is as counsel states it.
That a court of Illinois, upon proof of the facts before us would hold differently, even if material, is something about which we can know nothing, in the absence of evidence on the subject. We must decide according to the law of Indiana, except as the law of Illinois t was proved as one of the facts. As bearing on another point decided in our original opinion we cite the following additional authorities in support of the proposition that where the decision of a question, of fact was necessary-to the decision of a former action between the parties, a judgment in favor of one of them in such action is conclusive as an adjudication of that fact in all future actions between them. Goble v. Dillon (1882), 86 Ind. 327, 44 Am. Rep. 308; Lawrence v. Beecher (1888), 116 Ind. 312, 19 N. E. 143; Howe v. Lewis (1889), 121 Ind. 110, 22 N. E. 978; Green v. Glynn (1880), 71 Ind. 336; Young v. Stevens (1902), 28 Ind. App. 654, 63 N. E. 721.
The petition for rehearing is overruled.