48 Ind. App. 617 | Ind. Ct. App. | 1911
This was an action by appellees against appellant for possession of real estate, and for damages for the unlawful detention thereof. The answer was a general denial. On October 24, 1910, appellees obtained judgment for possession of the property — a storeroom in the city of Logansport, Indiana — and for $390 damages. The judgment is in the usual form, except the concluding part thereof, which is as follows: “It is further adjudged by the court, in pursuance of the agreement of the parties to this action, that the writ of ejectment shall not issue under this judgment until January 1, 1911.”
The entry shows that the plaintiffs were present by PicMe & Arthur, their attorneys, and the defendant, by Lairy & Mahoney, his attorneys. On January 4, 1911, execution and a writ of ejectment were issued on the judgment. On January 5, 1911, appellant filed his motion for a new trial as of right, and tendered his undertaking, as by law required. On March 1, 1911, the court overruled the motion for a new trial as of right, and this appeal was prayed and granted.
The question now before us arises on appellee’s verified motion to dismiss the appeal. The substance of the motion and the grounds for dismissal are as follows: (1) That there was no actual trial below, and the judgment was taken by compromise and agreement of the parties; (2) that, in pursuance of the agreement, no execution or writ of ejectment was issued until January 4, 1911; (3) that appellant,
The motion to dismiss is supported by the affidavit of David C. Arthur, one of the attorneys, and also by one of the appellees.
Appellant has filed his affidavit in opposition to the motion, the substance of which is that he held the premises in question by authority given him by the Logansport Drug Company, a corporation, which held a lease thereon; that some time after July 1, 1910, he learned that the action for possession had been filed; that no summons was served upon him; that said Logansport Drug Company, through its attorneys, Lairy & Mahoney, appeared to said action, and agreed to the judgment without his knowledge or consent; that he did not authorize the attorneys to act for him; that he made no payments on the judgment, but paid his rent to said company, which made any payments that were made on the judgment; that he did not know the judgment was rendered against him until after January 1, 1911; that he admits having conversations in October, November or December, 1910, with attorneys Lairy & Mahoney, with reference to his rights in and to the real estate, but denies any reference in such conversations to the judgment, or knowledge thereof by him at that time; and that his appeal is in good faith.
The affidavit of said Arthur shows that about July, 1910, he was informed by Moses B. Lairy that he was acting as
Appellant invokes the foregoing proposition to show that there was a trial, and that the judgment in this case was not by agreement, and in so doing says: “We call the court’s attention at the outset to the fact that the record shows that appellant filed his answer in general denial to appellees’ complaint, that evidence was heard, and that upon this evidence the court rendered the judgment appealed from.”
But the record also shows that the very answer upon which appellant relies was filed by his attorneys, Lairy & Mahoney, whose authority he now seeks to question, by matters dehors the record. For the purposes of this motion, it is as legitimate to show by evidence outside the record that the judgment entered was by compromise and agreement of the parties, without an actual trial, as to show in the same way that the attorneys who filed the pleadings and prepared the judgment entry were not authorized so to do.
Where there is such a conflict in the affidavits as appears here upon the question of the authority of the attorneys for appellant in the action below, we are not required to reconcile the conflict, but are fully warranted in adhering to the record as it appears in the transcript. Louisville, etc., R. Co. v. Boland, supra; Justice v. Justice (1888), 115 Ind. 201.
Where a judgment is entered by consent, or by compromise and agreement of the parties, and the court has jurisdiction of the subject-matter, the parties are estopped from denying the validity of the judgment, and from prosecuting an appeal on account of any errors in the proceedings or judgment. Board, etc., v. Clark (1909), 43 Ind. App. 499; Princeton Coal, etc., Co. v. Gilmore (1908), 170 Ind. 366; Ewing v. Ewing (1903), 161 Ind. 484; Indianapolis, etc., R. Co. v. Sands (1892), 133 Ind. 433, 438.
It is an established principle of our law, that a party cannot prosecute an appeal, and thereby seek to reverse a judgment, the benefits of which he has voluntarily and knowingly accepted. Such acceptance of benefits waives any errors otherwise available, and estops him from procuring a reversal of the judgment. Sonntag v. Klee (1897), 148 Ind. 536; McGrew v. Grayston (1896), 144 Ind. 165; Williams v. Richards (1900), 152 Ind. 528; Sterne v. Vert (1886), 108 Ind. 232; Ewbank’s Manual §§112, 113.