Arnold v. Haberstock

• Decision Date: 25 October 1937
• Docket Number: 26928.
• Citation: 10 N.E.2d 591,213 Ind. 98
• Parties: ARNOLD v. HABERSTOCK et al.
• Court: Indiana Supreme Court

10 N.E.2d 591

213 Ind. 98

ARNOLD v. HABERSTOCK et al.

No. 26928.

Supreme Court of Indiana

October 25, 1937

Heaton Shiffer & McClain, of Fort Wayne, for appellees.

ROLL Judge.

On July 8, 1931, appellant filed her complaint in the superior court of Allen county, Ind., against Mathilda Haberstock and Anton Haberstock on a promissory note and to foreclose a real estate mortgage of same date given to secure such note. The Haberstocks appeared and filed a special answer of partial payment, and on December 2, 1931, judgment was rendered against Haberstock and Haberstock for the sum of $4745 and $402.75 attorney fees, plus cost, and decreed a foreclosure of the mortgage. Thereafter, on December 31 1931, the real estate described in the mortgage was duly sold by the sheriff of Allen county, and appellant became the purchaser at said sale, bidding therefor the amount of her said judgment, and received from the sheriff of Allen county a certificate of purchase. On January 16, 1932, appellant filed her verified application in said superior court of Allen county to vacate and set aside the judgment and the decree of foreclosure and the sale had thereunder, on the ground that junior lienholders had not been made parties.

Haberstock and Haberstock were served with summons and appeared in person and by attorney, and filed answer in general denial. Upon the hearing before the court on January 20, 1932, the prayer of the petition was granted, and the court rendered judgment setting aside its judgment of December 2, 1931 against the defendants Haberstock and Haberstock and the decree of foreclosure of the plaintiff's (appellant herein) mortgage and the sheriff's sale had thereunder and declared the judgment, decree, and all proceedings had by virtue thereof null and void and of no force and effect, as if said judgment, order of sale, and decree of foreclosure had never been entered. The judgment also decreed that the sheriff's sale under the decree was null and void and that the certificate of title issued to the purchaser was set aside and to be null and void and of no force and effect. After the above decree was entered, appellant on January 25, 1932, filed an amended complaint against Mathilda Haberstock, Anton Haberstock, the P. & H. Supply Company, Lincoln National Bank & Trust Company, a national banking corporation, Martin F. Schick, and Fred Wehrenburg. This complaint was the same as the original complaint against Haberstock and Haberstock on the promissory note and to foreclose the mortgage on the real estate described therein and which was given to secure the payment thereof. The other defendants were made parties as holders of junior liens on the real estate involved. The defendants Martin F. Schick and Fred Wehrenburg were defaulted. The other appellees entered their appearance and filed answers. Appellee Lincoln National Bank filed answer in general denial and also a cross-complaint, but no question is presented involving the Lincoln National Bank and no further notice will be given its pleadings.

The appellee P. & H. Supply Company filed its answer in general denial. It also filed a cross-complaint wherein they set up a judgment taken by it against the defendants Haberstock and Haberstock in the superior court of Allen county, Ind., room No. 2, on the 19th day of May, 1931, for the sum of $1,587.05 and cost. It further alleged and set out in this cross-complaint all the previous court proceedings mentioned, and further alleged that the note and mortgage of appellant was merged in the judgment, and that the sale of the mortgaged real estate and the purchase at said sale by appellant for the full amount of her judgment and cost, including the cost of the sale, the receipt executed by her to the sheriff for the full amount of her judgment, was a full satisfaction and payment of her judgment. The cross-complainant further alleged that the order of the Allen superior court setting aside its judgment on foreclosure was as to this cross-complainant null and void and of no force and effect, because the appellee P. & H. Supply Company was not made a party to the proceeding to set aside and had no notice thereof, and by reason of the above facts the cross-complainant's judgment became a first lien upon the real estate herein described and asked the court to so find.

This cross-complaint was answered by an answer in general denial and six special answers, which are not material to the question here presented.

There was a request for special findings and conclusions of law.

The evidence was stipulated and is uncontradicted.

The court in substance found the facts as above enumerated and as alleged in the amended complaint and cross-complaint and set out in full all the pleadings, orders, and judgments made in this cause and recited in detail the various proceedings concerning the sheriff's sale and the sheriff's return, the receipt given to the sheriff by the purchaser, Celia Arnold, the execution of the certificate of sale, the certificate of sale, and found that the same has ever since been retained by appellant.

The court further found that the P. & H. Supply Company did on May 19, 1931 obtain a judgment against Haberstock and Haberstock in cause No. 3013, in superior court No. 2 of Allen county, for the sum of $1,587.05 and cost, and that the same was recorded in judgment record, etc., and that the same was due and unpaid and consitituted a lien upon the real estate described in plaintiff's complaint.

Upon the facts found the court stated the following conclusions of law:

'1. That the law is with the defendant and Cross-complainant, The P. & H. Supply Company.

'2. That the plaintiff is not entitled to have her mortgage foreclosed and takes nothing in this action.

'2A. That the plaintiff by her foreclosure of her mortgage in the Superior Court of Allen county, Indiana, on the 2nd day of December, 1932, is the holder and owner of a valid certificate of purchase from the sheriff of Allen County Indiana, and will be entitled to a deed to the premises and real estate described in said...