88 Ind. 349 | Ind. | 1882
— This was an action by the appellant Phoebe Scott upon an appeal bond executed by the appellees Charles
It was alleged in the complaint, that the appellant commenced a suit in the Whitley Circuit Court on the '7th of November, 1876, making defendants thereto the appellee Mar-chant, John H. Truman, Jeremiah Zartman and others, in which suit appellant demanded by her complaint a personal judgment against said Truman, and the cancellation of a release, entered upon the record of mortgages of Whitley county by Samuel Scott, of a mortgage executed by said Truman to-said Samuel Scott on land described; and she also “ demanded a foreclosure as -to all, and that the defendant Charles F. Marchant claimed to own said land by purchase from John H. Truman, and was made a defendant and required to set. up his interest therein, and was duly served with summons' and appeared by his attorneys to said suit, and a judgment of foreclosure for $1,500 was demanded by the plaintiff.” It. was alleged that the venue of said suit was changed to the Kosciusko Circuit Court, where issues were formed and a trial by jury was had, and, on the 16th of October, 1877., “a verdict was returned in the plaintiff’s favor for the sum of $1,500, and the cancellation of the release of mortgage, and a foreclosure against all the defendants that at the same term of court John H. Truman, Charles F. Marchant and Jeremiah Zartman made a motion for a new trial in writing in said cause; that on the 28th of June, 1878, the court overruled said motion, and said Marchant and others prayed an appeal to this court from “said final judgment, which judgment was rendered on the 28th day of June, 1878; which appeal was granted to said Charles F. Marchant upon the express condition that he, within thirty days from that date, would execute and file a bond in the penal sum of $1,000, payable to this plaintiff, with Ambrose M. Trumbull as surety thereon ;” that the court then and there fixed the penalty of the bond at $1,000 and approved the appellee Ambrose M. Trumbull as surety,
It was alleged that the appeal was duly perfected by said Marchant within sixty days from the rendering, of the final ■ judgment; that, on th'e 17th of March, 1881, this court affirmed said judgment in all things against said Marchant and the other defendants therein, and a duly certified copy of the opinion rendered in said cause by the Supreme Court was by the clerk thereof returned and filed with the clerk of the Kosciusko Circuit Court, on the 20th of May, 1881, and spread upon the order-book of said court; that, on the 1st of June, • 1881, a duly certified copy of the final order of sale was issued by the clerk of said Kosciusko Circuit Court, and placed, in the hands of the sheriff of Whitley county, and said land was duly advertised and sold by him on the 16th of June, 1881, and one Joseph W. Adair became the purchaser thereof for the sum and price of $77.5; that said John II. Truman was, and for the seven years last past had been, wholly insolvent; that there remained due and unpaid upon said judgment of foreclosure the sum of $1,000, principal and interest; that
In the action in which the appeal was taken, it is alleged in the complaint which we have, in substance, set out, that the plaintiff sought to recover a personal judgment against Truman, and the cancellation of the release of a mortgage, and demanded a foreclosure, Marchant being made a defendant because he claimed to own the mortgaged land by purchase from Truman. A verdict, it is said, was returned in the plaintiff’s favor for $1,500, for the cancellation of the release, and for a foreclosure against all the defendants. It is not alleged that a personal judgment was rendered against Marchant, or, indeed, against any other person. In the bond, the judgment appealed from is spoken of as a judgment in favor of Phoebe Scott against Marchant for the foreclosure of a mortgage; and in this complaint the judgment appealed from by Marchant is referred to constantly as a judgment of foreclosure. The appeal wasone taken “ in term.” By the bond Marchant would be bound only to prosecute his appeal from the judgment so far as it affected him, and to pay the judgment and costs affirmed or rendered against him in this court. Sturgis v. Rogers, 26 Ind. 1, 12. It is alleged that the appellant did not issue an execution or order of sale while the appeal was pending; but it is not alleged that she was prevented by this bond from
The same distinctions exist between this case and Hinkle v. Holmes, 85 Ind. 405, that were in that case pointed out as substantial distinctions between it and Willson v. Glenn, 77 Ind. 585.
■ The judgment should be affirmed.
Per Curiam. — It is ordered, upon the foregoing opinion, that the judgment be affirmed, at the costs of the appellant.