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Tachau et al. v. Fiedeldey et al.

the parties. No objection having been at any time made, such assent will be presumed. Richardson v. Howk, supra; Iglehart's Pl. and Pr. 452.

The complaint does not show that there is any available error in the judgment and proceedings sought to be reviewed. The judgment below should be affirmed.

PER CURIAM.—It is ordered, upon the foregoing opinion, that the judgment below be affirmed, at the costs of the appellants.

ON PETITION FOR A REHEARING. MORRIS, C.—The counsel for the appellant have filed a very earnest petition for a rehearing in this case. They insist that the error by them assigned is, that the complaint in the action sought to be reviewed does not contain facts sufficient to constitute a cause of action, and that in deciding the case this was overlooked by the court. Such an assignment would bring before the court the sufficiency of the complaint.

We have again carefully examined the record, and have been unable to find any error assigned, calling in question the sufficiency of the complaint.

An assignment of error, either upon appeal to this court or in a bill of' review, for insufficiency of facts, which questions less than the whole complaint, is insufficient. Reyman v. Mosher, 71 Ind. 596; McCallister v. Mount, 73 Ind. 559; Wagner v. Wagner, 73 Ind. 135. The complaint must be questioned as a whole; it is not enough to question one of several paragraphs. And it has been held at this term, in the case of Searle v. Whipperman, that such an assignment will be unavailing, if the complaint entitles the party to any relief.

In the complaint to review, it is stated that there is error in the finding and decree sought to be reviewed, in this, that by the decree John C. Fiedeldey was adjudged, for certain reasons stated, to have the first lien, to be first paid out of the proceeds of certain real estate, the title to which had been

Tachau et al. v. Fiedeldey et al.

fraudulently conveyed by the judgment debtors, which conveyances were, in said action, set aside as fraudulent. The complaint then proceeds to state, in substance, that it appeared upon the face of the third paragraph of Fiedeldey's complaint, that the appellants had obtained a judgment against Shaw and Newby before Fiedeldey had obtained his judgment; that they had also instituted a suit in the superior court to enforce their judgment against the real estate described in Fiedeldey’s complaint, before Fiedeldey had commenced the suit sought to be reviewed; that in such suit the appellants obtained against the proper parties a decree setting aside, as fraudulent, the conveyances set aside by the decree under review, and an order directing its sale for the satisfaction, first, of their judgment against Shaw and Newby; that these facts were all apparent upon the face of the third paragraph of Fiedeldey's complaint. It is alleged that the court, in the action sought to be reviewed, should have found that the appellants' judgment was the first lien, and by its decree it should have ordered it to be first paid out of the proceeds of the real estate ordered to be sold.

The prayer is that the decree sought to be reviewed be reversed; that the appellants have a finding and decree in their favor; that their judgment against Shaw and Newby, in conformity with the facts stated in the third paragraph of Fiedeldey's complaint, be declared the first lien upon, and ordered to be first paid out of, the real estate ordered to be sold.

It is clear that this assignment does not question the sufficiency of the complaint in the action sought to be reviewed. It does not refer to the first paragraph of the complaint at all. Had the decree given the appellants the first lien, they would, doubtless, have been satisfied. They complain because the court did not do this. But should it be admitted that the complaint to review does question the sufficiency of the third paragraph of Fiedeldey's complaint, it can not be pretended that it in any way calls in question the first. The appellants are made parties to the first paragraph and alleged to be judg

Tachau et al. v. Fiedeldey et al.

ment creditors of Shaw and Newby. This paragraph was abundantly sufficient to entitle Fiedeldey to some relief. Counsel say that the appellants were not notified of the pendency of the suit sought to be reviewed until after the third paragraph of Fiedeldey's complaint was filed, and were called into court to answer it alone. The record which they have brought into this court does not show these facts. They were made parties to the first complaint filed, and, in the absence of anything to the contrary, they will be presumed to have been in court to answer as to the whole complaint.

If, as the appellants have stated in their complaint, the court below erred in adjudging Fiedeldey entitled to priority, and in not holding that the appellants were entitled to such priority, the error could not be corrected by a proceeding to review, or by appeal to this court, without first giving the court below an opportunity to correct it.

There is nothing in the opinion in this case in conflict with the rulings of the court in Odell v. Carpenter, 71 Ind. 463. There was no error in taking the default against the appellants—it was properly taken. A motion to set it aside could not, therefore, present any error to the court below for correction. Nor is the case of Odell v. Carpenter, in conflict with Barnes v. Wright, 39 Ind. 293. In the latter

In the latter case, there

, was no motion to set aside a default, nor was anything said in the opinion about a default. The court below had erroneously rendered judgment for too much—entered a wrong judgment, which was sought to be corrected on appeal. This, the court held, could not be done without first giving the court below an opportunity to correct the judgment. This was all and precisely what the court decided. No such question was presented or decided in the case of Odell v. Carpenter, It had been held long before the case of Barnes v. Wright was decided, that it was not necessary to move in the court below to set aside a default in order to take an appeal. Indeed, where the default had been, as in the case of Barnes v. Wright, properly taken, it would be nonsense to make such a

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Corbaley, Adm’r, v. State, ex rel. Holmes et al.

motion, for it would necessarily be unavailing. But a wrong judgment may be rendered against a party properly defaulted. Where such is the case, the party against whom the error has been committed must, in a proper way, present it to the court which made the error, for correction. This, as we understand the rulings of this court, can not be done in the first instance by a complaint to review.

In the case of Searle v. Whipperman, the case of Berkshire v. Young, 45 Ind. 461, is modified; as modified, it is in harmony with the opinion in this case.

The petition should be overruled.
PER CURIAM.-Petition overruled.

No. 8517.

CORBALEY, ADM'r, v. STATE, EX REL. HOLMES ET AL.

DECEDENTS' ESTATES. — Claims.-Principal and Surety.Prior to the statute

of 1881 (R. S. 1881, section 2311), an ordinary suit might be brought against a principal debtor, and the administrator of his surety; and if the principal was not served with process, the suit might go on against the administrator alone, unless objection was made by motion before

pleading GUARDIAN AND WARD.--Action on Bond.Pleading.- Appraisement.--A

complaint on a guardian's real estate bond, to recover for failure to account for the proceeds of the real estate sold, need not show an appraise

ment of the real estate. SAME.-Set-Of.Answer of Surety.--In such an action, the guardian being

the father of the wards, and answer of set-off by the surety, alleging that the wards were indebted to the guardian in a sum named, "for board,

clothing and maintenance,” is bad on demurrer. SAME.-An answer in such case by the surety, that, the wards being of

tender years and unable to earn support, the guardian, who was their father, being destitute of means to support and educate his children and wards, was compelled to apply thereto the proceeds of said real estate, and now refuses to make claim against them on account thereof, is sufficient.

Corbaley, Adm'r, v. State, ex rel. Holmes et al.

SAME.-Statute of Limitations.-An answer, in such case, by a surety, alleg

ing that the cause of action did not accrue within three years next before the commencement of the action, is bad. From the Marion Circuit Court. R. Hill and J. W. Nichol, for appellant. H. J. Milligan, for appellees.

ELLIOTT, C. J.—This action is upon a bond executed by Jonathan L. Holmes, guardian of the relators, in proceedings had upon petition for the sale of their real estate. Pence, the appellant's intestate, was the surety on this bond. The breaches assigned are, failure to render accounts current, failure to pay over or account for the avails of the sale of the real estate of relators, and conversion thereof.

The appellant insists that the court erred in overruling his demurrer to the complaint. The first proposition stated in support of this contention is, that the remedy adopted is not the appropriate one, but that the claim should have been filed against the estate of the decedent. This objection is presented in another form, that of a motion for want of jurisdiction, but the entire question may be disposed of at the outset. The motion to dismiss was not filed until after a demurrer had been interposed and overruled, and an issue joined upon appellant's answer. It is clear that the court had jurisdiction of the subject matter. The principal was certainly a proper party to the action. It is settled that the administrator of a deceased joint debtor may be sued jointly with the survivor. McCoy v. Payne, 68 Ind. 327; Milam v. Milam, 60 Ind. 58; Braxton v. The State, 25 Ind. 82; Wright V. Jordan, 71 Ind. 1. The principal obligor was sued with the administrator and this gave the proceeding the character of an ordinary action. Martin v. Asher's Adm'r, 25 Ind. 237; Owen v. State, 25 Ind. 107.

The motion of appellant came too late to have availed him, even if he had been sued alone. Morrison v. Kramer, 58 Ind. 38, decides that where an administrator is sued in the

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