Bateman v. Miller

• Decision Date: 23 April 1889
• Docket Number: 13,744
• Citation: 21 N.E. 292,118 Ind. 345
• Parties: Bateman v. Miller
• Court: Indiana Supreme Court

21 N.E. 292

118 Ind. 345

Bateman v. Miller

No. 13,744

Supreme Court of Indiana

April 23, 1889

From the Montgomery Circuit Court.

The judgment is reversed, at the costs of the appellee, with instructions to restate conclusions of law, and for further proceedings not inconsistent with this opinion.

W. H Thompson and J. West, for appellant.

M. E Clodfelter and J. A. Lindley, for appellee.

OPINION

Coffey, J.

This was an action brought in the Boone Circuit Court by the appellant against the appellee to recover the possession of the real estate described in the complaint. On a change of venue the cause was tried in the Montgomery Circuit Court. The facts are found specially, and conclusions of law thereon stated.

The material facts, as found by the court, are substantially as follows:

On the 19th day of August, 1879, the appellant, Sarah Bateman, and John M. Bateman commenced an action in the Boone Circuit Court against John W. Barber, Spice A. H. Barber, Susan Barber, George W. Gibson and John McLane to foreclose a mortgage executed by the said John W. Barber and Spice A. H. Barber, his wife, on the 1st day of September, 1871, on the land in controversy here, with other lands, being lots 16, 17 and 18, in Piersol's second addition to the town of Jamestown, in Boone county, Indiana, to secure the payment of six promissory notes of $ 1,000 each. All of the defendants to said action were duly served with process. On the 3d day of September, 1879, the said John W. Barber and Spice A. H. Barber, by Wesner & Nave, their attorneys, filed a demurrer to the complaint in said cause. On the 7th day of October, 1881, the court made the following entry in said cause, viz.:

"Come now the parties, by their attorneys, and file the following written agreement in this cause, to wit:

"'The plaintiffs to have personal judgment against John W. Barber for five thousand four hundred and ninety dollars, and a foreclosure of said mortgage against all of said defendants as to lot (16) sixteen, and that the defendant George W. Gibson has a prior lien upon said lots 17 and 18 for two thousand dollars, and no foreclosure is to be taken against said lots 17 and 18, and the said defendant George W. Gibson now pays the plaintiffs the sum of two hundred and fifty dollars, the receipt whereof is hereby acknowledged, and the decree is to be rendered according to this agreement.

"'Sarah A. Batemam.

"'John M. Bateman.

"'By G. H. Goodwin, Attorney.

"'George W. Gibson.

"'John McLane.

"'John T. McLane.

"'By C. S. Wesner, John W. Clements and W. J. Darnell, Att'ys for Def'ts.'"

Upon this agreement the court rendered judgment in said cause for the sum of five thousand four hundred and ninety dollars against the said John W. Barber, and a decree of foreclosure as to lot sixteen (16) against all the other defendants. On the 22d day of May, 1884, the clerk of said court issued to the sheriff of said county a duly certified copy of said decree, who, after due notice, sold said lot 16 to the plaintiffs in said judgment and decree for the sum of five dollars, and issued to them a certificate of purchase. John M. Bateman, who was the husband of the appellant, died in the year 1885, before the year for redemption had expired, leaving the appellant as his widow. The year for redemption having expired, and said lot not having been redeemed, the sheriff of said county, on the 26th day of August, 1885, executed to the appellant a sheriff's deed for said property in due form of law. Before the commencement of this suit the appellant, by her agent, demanded possession of said lot of the appellee, which he refused to surrender, and still holds the same. The said John M. Bateman was the owner and in the possession of said property on the 1st day of September, 1871, and on said day sold and conveyed the same by warranty deed to the said John W. Barber, who, to secure part of the purchase-price, executed the mortgage herein described and foreclosed as aforesaid. The appellee does not claim to hold by any contract with either the said John M. Bateman or the appellant.

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

1st. That the judgment of the Boone Circuit Court, as against John W. Barber, is void.

2d. That the plaintiff's alleged title and right of possession of the premises described in the complaint rests upon said judgment and the subsequent proceedings thereunder; that, the said judgment and subsequent proceedings thereunder being void as against the party having the legal title to said real estate at the time of the rendition of the judgment, the plaintiff is not entitled to recover against the defendant, who is in possession of said real estate.

The error assigned in this court is that the Montgomery Circuit Court erred in its conclusions of law upon the facts as found.

In Freeman on Judgments (3d ed.), section 116, it is said by the author: "It has often been said that a judgment is void whenever the court which pronounced it had not jurisdiction of the parties to the judgment, or of the...