30 Ind. App. 389 | Ind. Ct. App. | 1903
Suit against appellee King, as sheriff, and his bondsmen, to recover money alleged to have been received for the use of relatrix. The complaint filed December 8, 1899, avers that theretofore one Lucas began foreclosure proceedings against relatrix and her husband to collect a debt owing by her husband and foreclose a mortgage on lands owned by her husband," in which mortgage she had joined. William Y. Stuart and William F. Bartmess each held a personal judgment against the husband, and were made parties. The only process upon relatrix was the original summons issued at the instance of Lucas. Belatrix did not appear, and was defaulted. The holders of the personal judgments answered, setting out their judgments. The foreclosure decree provided that the surplus, if any, over an amount sufficient to satisfy the mortgage, be applied on the personal judgments of Bartmess and Stuart; that the amount necessary to satisfy the mortgage was $3,368.35; that afterwards Stuart took an assignment of the Lucas judgment, and caused the land to be sold by the sheriff in June, 1899, for $4,600; that King, the sheriff, applied on the Lucas judgment $3,368.35, and-of the balance applied $304.41 on the Bartmess judgment, and $927.24 on the Stuart judgment; that the amount of the two last-named sums so applied, to wit, $1,231.65, was less than the value of the inchoate interest of relatrix in the land as against Bartmess and Stuart. It is also averred that before these sums were so applied, relatrix, as such wife, demanded the same of King, and also filed a complaint in the Tippecanoe Superior Court asking for the review of the original decree, and asking to restrain the sheriff from so applying such sum, and that summons was issued and served on King prior to the time of such application,; that thereafter King took sufficient undertaking from Bartmess and Stuart to
Appellees’ answer admits the bringing of the foreclosure suit, sets out in full the decree, alleges that the decree remained in full force until the 25th day of November, 1899, when so much as related to the application of the surplus arising from the sale, above the amount necessary to pay the Lucas judgment, was set aside; that at the time of rendering the Lucas judgment the court had jurisdiction of the subject-matter of the action, and of all parties thereto, and of all matters therein adjudicated, and that the decree was in all respects legally and duly recovered; that on the 9th day of May, 1899, the clerk of the court issued to the sheriff a certified copy of the decree with an order of sale; that the land was duly advertised for sale, and was sold June 10, 1899, for $4,600; that on the same day the sheriff paid of this sum $3,248.35 to Stuart, the assignee of the' Lucas judgment, and, after paying costs, had $1,231.65 in his hands; that on that day the sheriff held executions theretofore duly issued on the Bartmess and Stuart judgments, and applied such surplus in accordance with the decree on these executions, of all of which he made due return ; copies of the judgment, decree, and order of sale, and return are made exhibits; that on the same day, and a few hours before the sale on June 10, 1899, relatrix commenced the suit mentioned in the complaint against her husband, Bartmess, Stuart, Ring, and others, asking, among .other
The second paragraph of reply sets out more in detail the facts averred in the complaint; that the only averment in the Lucas foreclosure complaint as to the Stuart and Bartmess interests was that they were each claiming some interest unknown, but inferior to plaintiff’s rights, and were made parties to answer to such interest; sets out copies of the answers of Stuart and Bartmess in that suit, in which it appears they only claimed to have personal judgments against relatrix’ husband and John Holliday, which were junior liens to Lucas’ mortgage; that they filed no other pleadings; that at the time of the foreclosure decree Eli Holliday was the owner in fee simple of the land, and that relatrix had not conveyed her interest to anyone; that on the day of and prior to the sale of the land relatrix notified the sheriff that she was the wife of Eli Holliday, and as against the judgment liens of Bartmess and Stuart she was entitled to the undivided one-third of the land, or of the proceeds thereof; that after the sale, and while the money was still in his hands, she demanded all the money above the amount necessary to pay the Lucas judgment, which demand he refused; that in the suit brought by her on June 10, 1899, against the sheriff and others, process was issued and served upon the sheriff, before he sold the land or offered it for sale; that the sheriff, while the money was still in his hands, had full knowledge of the fact that that action was
Hpon the appeal mentioned in the answer in the case at bar, this court held that part of the original foreclosure decree to be void which directed that the surplus of the .proceeds of the sale after paying the mortgage debt be applied on the Bartmess and Stuart judgments. Bartmess v. Holliday, 27 Ind. App. 544.
The record discloses that the superior court had jurisdiction of the subject-matter and of the parties in the original foreclosure proceedings in which the decree and order of sale were made, and that this decree and order of sale, as originally made, were in force at the time the sale of the land was made, and the surplus applied to the payment of the two judgments. The process, issued from a court having authority to issue process of that nature, was in legal form, and contained nothing to notify or fairly apprise the shériff that it was issued without authority; that is, the process “was legal and fair upon its face,” and showed jurisdiction in the court from which it was issued.
The general rule, supported by the great weight of
In Erskine v. Hohnbach, supra, the court said: “Whatever may have been the conflict at one time, in the adjudged cases as to the extent of protection afforded to ministerial officers acting in obedience to process, or orders issued to them by tribunals or ‘officers invested by law with authority to pass upon and determine particular facts, and render judgment thereon, it is well settled now, that if the officer or tribunal possess jurisdiction over the subject-matter upon which judgment is passed, with power to issue an order or process for the enforcement of such judgment, and the order or process issued thereon to the ministerial officer is regular on its face, showing no departure from the law, or defect of jurisdiction over the person or property affected, then, and in such cases, -the order or process will give full and entire protection to the ministerial officer in its regular enforcement against any prosecution which the party aggrieved thereby may institute against him, although serious errors may have been committed by the officer or tribunal in reaching the conclusion or judgment upon which the order or process is issued.”
The fact that the relatrix, on the day of and prior to the sale on the foreclosure decree, filed her petition to review the original foreclosure proceedings and caused a summons to be served upon the sheriff, did not affect the duty imposed upon him by law to execute the process then in his hands. It is true a restraining order was prayed, and in a proper case an officer might be restrained from executing process in his hands, but the necessary steps were not taken to secure a temporary restraining order, and no restraining order was ever issued. The filing of the complaint and service of summons was, in effect, simply a proceeding to review the judgment in which the foreclosure decree was rendered. The question, then, is whether the sheriff was required to take notice of the proceedings to review.
In Henline v. Reese, 54 Ohio St. 599, 56 Am. St. 736, it is held that a ministerial officer, having knowledge from a source other than the writ that the court issuing it was without jurisdiction of the person, may decline to serve it, but that he may nevertheless, relying on its regularity, execute it according to its commands, and plead it in justification of his act in so doing. See Watson v. Watson, 9 Conn. 140, 23 Am. Dec. 324; Thompson v. State, ex rel., 3 Ind. App. 371.
Moreover, as a proceeding to review a "judgment has for its object the correction of some error upon the face of the
It is well settled that an appeal does not necessarily stay proceedings, and that there may be an effective appeal and the right to enforce the judgment or decree appealed from still remain unimpaired. Elliott, App. Proc., §384; Ewbank’s Manual, §§9, 173. And we think it must be said that the statute authorizing proceedings to review a judgment not only does not contemplate that such a proceeding-will stay the judgment, but that it contemplates the contrary, by providing that, “At any time after filing the complaint, and before the final hearing, the court may, upon application of the plaintiff, stay all further proceedings on the judgment. When proceedings are stayed, the court shall direct bond and surety to be given, as in eases of appeal.” §630 Burns 1901.
The sheriff had the right, unless restrained by some means known to the law, to execute the process according to its terms. There was nothing upon the face of the process to indicate that appellant’s rights had not been properly protected in the foreclosure suit, and there was nothing on the face of the process indicating the relation sustained by appellant to the owner of the land. It did appear that
Judgment affirmed.