Abshire v. Williamson

• Decision Date: 06 January 1898
• Docket Number: 18,055
• Citation: 48 N.E. 1027,149 Ind. 248
• Parties: Abshire et al. v. Williamson
• Court: Indiana Supreme Court

48 N.E. 1027

149 Ind. 248

Abshire et al. v. Williamson

No. 18,055

Supreme Court of Indiana

January 6, 1898

From the Wells Circuit Court.

Appeal dismissed.

Wilson & Todd, for appellants.

Dailey Simmons & Dailey, for appellee.

OPINION

Jordan, J.

The appellee herein commenced this action in the lower court making Samuel and Florence B. McCluney, Henry D. Mumert Peter Nutter, C. Bert Abshire, Christian Blody, and William H. Ernst, auditor of Wells county, Indiana, defendants thereto. The purpose of the suit was to recover a personal judgment of some of the defendants, and obtain a decree foreclosing a mortgage, and declaring the lien thereof to be senior to certain other mortgages held by some of the defendants. The defendant Ernst, as county auditor, appeared and filed an answer and cross-complaint. He made the plaintiff, Williamson, and all of his codefendants, defendants to the cross-complaint. By this cross-action it was sought to foreclose a certain school fund mortgage against all who were made defendants to the cross-action, and to determine and adjust certain liens which they claimed to hold and have against the mortgaged premises, the latter being the same land as that embraced in the mortgage of the plaintiff. The defendant Abshire appeared and answered the plaintiff's complaint, and also filed a cross-complaint, making the plaintiff and all of his codefendants defendants thereto. By his cross-complaint Abshire sought to recover a personal judgment, and a decree foreclosing certain mortgages on the same lands. The defendant Blody answered the cross-complaint of Abshire by the general denial and plea of payment, etc. Ernst, the auditor, demurred to the cross-complaint of Abshire, which demurrer was overruled, and he then filed his answer thereto. Abshire demurred to the second, third, fourth, and fifth paragraphs of Blody's answer to his cross-complaint, which demurrer was overruled, and he excepted, and then replied to the answer of Blody. Abshire also unsuccessfully demurred to the cross-complaint of Ernst, as auditor, and thereupon filed his answer to said cross-complaint. Ernst, as auditor, filed an answer to the cross-complaint of Abshire. Samuel and Florence B. McCluney, Henry D. Mumert, and Peter Nutter seem to have been defaulted. The issues being joined between the plaintiff and Abshire on the complaint of the former and the cross-complaint of the latter, and also between Abshire, Blody, and Ernst, as auditor, on the respective cross-complaints and answers, the cause was submitted to the court for trial, and the court made a special finding, and stated its conclusions of law, and rendered the judgment and decree which appellant seeks to reverse. The judgment was in favor of the plaintiff, Williamson, on the notes and mortgage mentioned in his complaint, and against the defendants, McCluney and McCluney, Mumert, Abshire, and Blody, and in favor of the State of Indiana, on the school fund mortgage, set up in the cross-complaint of Ernst, auditor, as against Abshire and Blody for $ 309.75, and against all of the parties on a foreclosure of said mortgage. It was further adjudged and decreed by the court that as between Abshire and Blody the mortgaged premises should not be subjected to the lien of the plaintiff, Williamson, and as between Abshire and Blody, the former should pay off and discharge each and all of the liens on the land in question existing in favor of the plaintiff and in favor of the State on the school-fund mortgage, and that the property, real and personal, of Abshire, should be first exhausted in the payment thereof; and it was further adjudged that Abshire take nothing on the three notes signed by Samuel and Florence B. McCluney, being the notes set up by him in his cross-complaint; and it was adjudged that his codefendants, together with the plaintiff, recover of him their cost laid out and expended. Abshire is the only party who moved for a new trial, and the only one who has appealed from the judgment and assigned error in this court, and Williamson is the only party made an appellee to this appeal.

Appellant Abshire bases his fifth, sixth, seventh, and eighth assignments of error on the action of the court in overruling his demurrer to the second, third, fourth, and fifth paragraphs of Blody's answer to the cross-complaint of said appellant. The ninth assignment is based on the court's decision in overruling appellant's demurrer to the cross-complaint of Ernst, auditor. By other allegations in his assignment of error he complains of certain other rulings of the court...