Anderson v. Wilson

• Decision Date: 12 February 1885
• Docket Number: 10,965
• Parties: Anderson v. Wilson et al
• Court: Indiana Supreme Court

100 Ind. 402

Anderson v. Wilson et al

No. 10,965

Supreme Court of Indiana

February 12, 1885

From the Tippecanoe Circuit Court.

The judgment is affirmed, with costs.

J. S Scobey, for appellant.

W. C Wilson and J. H. Adams, for appellees.

OPINION

Mitchell J.

The facts in this case, as they are set out in the amended complaint, are, briefly, that the appellant, in January and February, 1873, by two separate deeds acquired title to certain lands in Tippecanoe county from one Horn and wife, for the consideration of $ 4,500. At the time the land was conveyed it was subject to a mortgage, held by one Mayo, upon which there was due about $ 1,996, the payment of which the appellant assumed as part of the purchase-price. Prior to the conveyance, Horn and wife had executed a mortgage on the same land to secure an indebtedness due from Horn to one Vorhis for about $ 1,060. This mortgage was subsequent in date to the Mayo mortgage, and appeared to be satisfied and cancelled of record at the time of the purchase by appellant from Horn. Soon after the conveyance by Horn to the appellant, Mayo filed a bill in the Tippecanoe Circuit Court to foreclose his mortgage, making the Horns, Vorhis and the appellant parties defendants. While this bill was pending, the appellant paid off Mayo's mortgage, and his suit was dismissed; but a few days before the dismissal Vorhis filed a cross bill, setting up his mortgage and alleging that the cancellation and satisfaction appearing of record had been procured by fraud and without consideration, and asking to have it set aside, and for a decree of foreclosure.

It is charged in the complaint that Vorhis fraudulently concealed from the appellant the fact that he had filed a cross bill until after appellant had paid off the Mayo mortgage, which it is averred he paid off by the advice of Vorhis, who knew that the appellant at the time such payment was made had no knowledge of the filing of the cross bill, and who represented that the payment of the Mayo mortgage would free the land from incumbrance.

It appears from the complaint that some time after the Mayo mortgage was paid off, process was issued and served on the appellant and the other defendants in the Mayo case, to answer the cross complaint of Vorhis, and that subsequently a decree was entered, the appellant having made default, setting aside the cancellation of the Vorhis mortgage, and foreclosing the appellant's equity of redemption in the land. Still later, the land was sold by the sheriff to William C. Wilson and Jay H. Adams to satisfy the decree so rendered in favor of Vorhis. Wilson and Adams were made parties below, it being averred that they were the attorneys of Vorhis, and had knowledge of the facts imputed to him.

The relief which the appellant asks in his bill is: 1. That the decree in favor of Vorhis be declared junior to the Mayo mortgage, which the appellant paid, and that the appellant be subrogated to the rights of Mayo, and that Vorhis be decreed to pay the appellant the amount which was paid by him to satisfy the Mayo mortgage, with interest. 2. That the decree in favor of Vorhis be declared fraudulent and void.

The court sustained a demurrer to the complaint.

It is contended by counsel for the appellant, that the decree rendered on the cross complaint of Vorhis was void, because no summons was issued on it until after the dismissal of the original action. The argument is, that the filing of a complaint is not the commencement of a suit, and that the suit by cross complaint was not commenced until a summons was delivered to the sheriff, and that this not having been done until after the original action was dismissed, it was necessary that there should be a new complaint making new parties, and that because this was not done the decree which followed was a nullity. Conceding counsel's premise, that neither an action, nor cross action, can be said to be pending until process is served, it does not follow that when process does issue, and a decree is given, against parties duly summoned, all the proceedings including the decree are invalid and void.

The proceeding before us is one in which a decree of the circuit court is subjected to a collateral attack, and it is conceded that unless that decree was invalid and void, the appellant has no ground to complain of the ruling of the court below.

Filing a cross complaint was substantially the commencement of a new action by Vorhis against his co-defendants, and the complaint was, for that purpose, a new pleading to enforce a separate and distinct right. Meredith v. Lackey, 16 Ind. 1; Fletcher v. Holmes, 25 Ind. 458.

The decree which was rendered on the cross complaint is assailed on the ground that no parties are named in the cross complaint; that it does not name the court in which it is filed, and that the appellant is nowhere named in the bill.

A copy of the cross bill is made part of the amended bill in this record. Its caption is as follows: "Henry S. Mayo v. John Horn et al. No. 2586. Ambrose S. Vorhis, one of the defendants in the above entitled cause, by way of answer and cross complaint against all his co-defendants, says," etc. After setting up the note and mortgage executed to him by Horn and wife, and the cancellation of the mortgage of record, and the supposed causes which entitled him to have the cancellation of the mortgage set aside, it concludes with a prayer for a decree setting aside the release entered by him, and for judgment and the foreclosure of the mortgage, "and that the claim of this defendant be found prior to all liens and claims of all parties hereto, and other proper relief."

In chancery pleading, it was a rule almost universal, that no persons were considered defendants except those against whom process was prayed. Barbour Parties to Action, p. 450; Story Eq. Pl., section 44.

In Verplanck v. Mercantile Ins. Co., 2 Paige 437, it is said in substance, that no persons are considered parties defendants in a bill in chancery except those against whom process is prayed, or who are specifically named and described in the bill. And in Elmendorf v. Delancey, 1 Hopkins 555, Chancellor Sandford said: "When...