Arnold v. Haberstock

• Decision Date: 20 December 1937
• Docket Number: No. 26928.,26928.
• Citation: 11 N.E.2d 682,213 Ind. 98
• Parties: ARNOLD v. HABERSTOCK et al.
• Court: Indiana Supreme Court

213 Ind. 98

11 N.E.2d 682

ARNOLD

v.HABERSTOCK et al.

No. 26928.

Supreme Court of Indiana.

Dec. 20, 1937.

On petition for rehearing.

Petition denied.

For orignal opinion, see 10 N.E.2d 591.Appeal from Whitley Circuit Court; McNagny, Judge.

Robert A. Buhler, of Fort Wayne, for appellant.

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

ROLL, Judge.

By a petition denominated a petition for rehearing, appellee P. & H. Supply Company has called to our attention conclusion of law No. 3, which was stated as follows: ‘That the defendant and cross-complainant, The P. & H. Supply Company, has a first and prior lien against the real estate described in plaintiff's complaint by virtue of its judgment in the sum of Fifteen Hundred Eighty-seven and 05/100 Dollars and costs and interest at rate of 6 per cent per annum from May 19, 1931.’ And points out that this conclusion is inconsistent with the original opinion herein, and the mandate of this court should have directed a restatement of this conclusion. We agree with appellee's suggestion, and the trial court is hereby directed to restate the third conclusion of law in conformity with this opinion.

We do not think a new trial is necessary.

The P. & H. Supply Company, by its cross-complaint, asked the trial court to hold that the original judgment of foreclosure of appellant's mortgage and the sale had thereunder void; and to hold that the subsequent action of the Allen superior court in setting aside the original judgment of foreclosure and the sale had thereunder to be void and of no force or effect. The trial court found for appelle upon its cross- complaint, and held that the subsequent action of the Allen superior court was of no force or effect, and that appellant's certificate of title, issued by the sheriff of Allen county, was a...