150 Ind. 441 | Ind. | 1898
This was ap action brought by ap pellant to enjoin the enforcement of a judgment in attachment. On the overruling of a demurrer to the complaint, and the filing of an answer in general denial, the cause was submitted to the court. There was a special finding of facts with conclusions of law against the appellant; and over a motion for a venire de novo, and a motion for a new trial, judgment was rendered in accordance with the conclusions of law.
It is contended by the appellant that the court erred in its conclusions of law, and also in overruling the motion for a venire de novo and the motion for a new trial.
We are, however, first met with a contention of appellees, who have assigned as cross-error that the court overruled their demurrer to- the complaint. Counsel for appellant intimate that the sufficiency of the complaint, under this cross-assignment, will not be considered, for the reason that there was a special finding of facts with conclusions of law thereon; and because it has been frequently decided that errors in overruling demurrers to pleadings, when there is a special finding or a special verdict, are not material, as a correct statement of the law upon the facts found would cure the error,'if any had been committed in the ruling upon the demurrers. Scanlin v. Stewart, 138 Ind. 574; Woodward v. Mitchell, 140 Ind. 406; Ross v. Banta, 140 Ind. 120; Walling v. Burgess, 122 Ind. 299, 7 L. R. A. 481; State v. Vogel, 117 Ind. 188; Louisville, etc., R. W. Co. v. Downey, 18 Ind. App. 140; Coxy. Hayes, 18 Ind. App. 220;, Smith, Tr., v. Wells Mfg. Co., 148 Ind. 333.
But by the rule thus stated, supported as it is by
Of course the rule has no application where a pleading is stricken out, by sustaining a demurrer to it. The rule applies only where the pleading is retained, by overruling the demurrer directed against it. Neither could the rule, strictly speaking, be applicable where facts had been found which were not within the issues made by the pleadings. Such facts should be disregarded. But a party by excepting to the conclusions of law might, perhaps, be held to have waived any such error in the finding, by admitting that the facts had been correctly found, which waiver would include, of course, an admission that the facts found were within the issues.
It is plain, therefore, that even though there has been a special finding of facts, with conclusions of law
From the complaint it appears that the appellant is the assignee of the' Commercial Bank of Oxford, Indiana, the deed of assignment dating from May 19, 1893; and that the appellee Scott is the executor of the last will of James T. Scott, who departed this life August 8, 1896; that on January 31, 1894, one Zimri Dwiggins and his wife executed two mortgages on the real estate in controversy, situated in Jasper county, and then owned by the said Dwiggins, to secure the payment to appellant of debts amounting to $12,000.00; that said mortgages were foreclosed for $13,989.95, and the lands sold to appellant for $10,000.00, in part satisfaction of said judgment; and that appellant holds 'a sheriff’s certificate of such sale, dated December 26, 1896. It is further alleged, that, on May 12,1893, the said James T. Scott commenced a suit in the Howard Circuit Court to recover the sum of $825.00 from the said Dwiggins and others, as partners, doing business under the name of the Farmers’ Bank of Greentown in Howard county; that on said day said Scott, on affidavit that Dwiggins was a nonresident of the State, procured the issuance of a writ of attachment against the property of said partnership in Howard county, by virtue of which, such prop
The sole question for decision is, whether the writ of attachment directed to the sheriff of Jasper county, and the order of sale issued thereunder by the Howard Circuit Court are void. Whether any of the proceedings detailed in the complaint were irregular and such as might have been taken advantage of by the defendant Dwiggins on direct attack or on appeal, are not questions for our consideration. ' This is a collateral attack upon the proceedings and judgment of the Howard Circuit Court, and as such cannot prevail, unless such proceedings and judgment were wholly void.
The Howard Circuit Court is a court of general jurisdiction; and as such, has full authority to make orders and enter judgments in all matters relating to tkp attachment and sale of real esatate. The statuté, section 931, Burns’ R. S. 1894 (919, R. S. 1881), provides that “orders of attachment may be issued to the sheriff of any other county; and several of them may,
Appellant insists that, by the appointment of the receiver, on May 13, 1893, and the turning over to .him of the property attached in Howard county, the attachment proceedings, begun on May 12, 1893, were abandoned, and hence that on May 29,1893, there was no authority, without a new affidavit and bond, to issue the writ of attachment to Jasper county. No facts are alleged to show a'dismissal or abandonment of the attachment proceedings on the appointment of the receiver. On the contrary, the very circumstance that a second writ was issued on the 29th of May^ goes to show that it was then assumed that the attachment proceedings remained in full vigor. This, too, was the judgment of the court when, on April 13,1895, it ordered the sale of the land by virtue of the writ of attachment issued on May 29, 1893. Neither is it true that the appointment of the receiver for the property in Howard county disclosed the adoption of a remedy inconsistent with the attachment proceedings, and hence an abandonment of the latter. By either remedy all the creditors could share ratably in the proceeds of the property in Howard county; and there could be no inconsistency in seizing upon other property in Jasper county, in the proceeds of which one or all of the creditors might also share as to any balance'due them.
But it is said that on April 13, 1895, there was no
It is further argued that no judgment was authorized against the lands in Jasper, under provisions of section 931, supra, for the reason that on May 29, 1893, the writ of attachment was issued “without having obtained personal service upon the said Zimri Dwiggins, or without having attached any property of the said Dwiggins in Howard county (except the partnership property), or without having summoned any garnishee in said Howard county.”
If any of these conditions obtained, the judgment would be authorized by the statute cited. In the first place, it is not alleged that the record does not show that some one of the conditions did exist. In the absence of an allegation that there is no such record, we must, in support of the jurisdiction exercised by the court, presume that there is such record; and if there is a record showing the existence of any of the required conditions, such record must prevail against an allegation that some one of the conditions did not exist.
Moreover, as to the first condition, it may be that up to May 29, 1893, when the writ was issued, no personal service was had upon Zimri Dwiggins; and yet such service might be had afterwards, and before the entry of judgment on the attachment. It is not necessary that notice to the defendant in attachment
The appellant took his mortgages, pendente lite, and after the land in question had been attached by the sheriff of Jasper county. He is therefore in no better position than Dwiggins himself would be if he were seeking to impeach the judgment of the Howard Circuit Court. He should therefore not only allege what was done and what was omitted by the court as affecting its jurisdiction in the matter, but it is also necessary that “he should allege in his pleading what if anything, is shown by the record” in relation to the issue which he tenders. This he has not done, and the omission is fatal to his complaint.. Exchange Bank v. Ault, 102 Ind. 322; Bloomfield R. R. Co. v. Burress, 82 Ind. 83; Krug v. Davis, 85 Ind. 309; Cassady v. Miller, 106 Ind. 69; Cosby v. Powers, 137 Ind. 694; Bailey v. Rinker, 146 Ind. 129; Davis v. Clements, 148 Ind. 605; Thompson v. Harlow, post, 450, and authorities there cited. These cases show conclusively that the complaint was insufficient to authorize any judgment in favor of appellant. It is not therefore necessary to consider the errors assigned by him. Such errors, even if they should be found to exist,