Brackney v. Boyd
| Decision Date | 17 June 1919 |
| Docket Number | 10,062 |
| Citation | 123 N.E. 695,71 Ind.App. 592 |
| Parties | BRACKNEY ET AL. v. BOYD ET AL |
| Court | Indiana Appellate Court |
Rehearing denied December 12, 1919, Reported at: 71 Ind.App 592 at 600.
From Putnam Circuit Court; John H. James, Special Judge.
Proceeding by Ida Cullen Boyd and Jackson Boyd for a writ of assistance on the petition of the latter, against Daniel C. Brackney and another. From a judgment for the petitioner, the defendants appeal.
Affirmed.
Fay S Hamilton and Thomas A. Moore, for appellants.
Lyon & Peck and Jackson Boyd, for appellees.
The appellants were the owners of lots numbers 1 to 6, inclusive, Higert's subdivision in the city of Greencastle, Indiana, and executed their mortgage thereon to the appellee Ida Cullen Boyd. After the making of said mortgage the said Higert's subdivision, including said lots, and streets and alleys abutting them, was duly vacated according to the law and the easement of the public removed therefrom. The situation is better understood by reference to the following plat:
[SEE DIAGRAM IN ORIGINAL]
Thereafter, to wit, on August 9, 1912, said appellee Ida Cullen Boyd commenced suit in the Putnam Circuit Court against the appellants to foreclose said mortgage. A change of venue was taken from the regular judge of said court, and the Honorable John H. James was appointed and duly qualified to try said cause, and upon the trial thereof entered a judgment and decree, in favor of said Ida Cullen Boyd and against the appellants, foreclosing said mortgage.
The sheriff sold said land by virtue of the authority of a certified copy of the foreclosure judgment and decree, and the appellee Ida Cullen Boyd purchased the same at such sale and took a certificate of sale therefor, which the said appellee afterward sold and assigned to the appellee Jackson Boyd; after the expiration of the year for redemption, said land not having been redeemed, the appellee Jackson Boyd received from the sheriff of Putnam county a deed therefor, said land being described in the proceeding and in said deed by the lot numbers as originally in the mortgage.
Thereafter, when said appellee Jackson Boyd went to take possession of said lots, or such part of the same as he had not sold, appellants refused, upon notice and demand, to surrender possession thereof, and said appellee then filed his petition before the Honorable John H. James, special judge as aforesaid, to redocket said cause and for a writ of assistance, afterwards filing an amended petition describing said land therein by its lot numbers, and also describing it by metes and bounds, commencing at the southwest corner of lot No. 19 in trustee's plat, which point can be located by reference to the plat above. This description included the streets and alleys upon which said lots abutted, and which are involved in this action.
The petition prays for a writ of assistance, directing the sheriff to remove the appellants from said real estate and put the appellee in possession thereof.
Appellants appeared specially and objected to the Honorable John H. James sitting or acting as the judge in said cause, he being the special judge sitting at the foreclosure proceeding in said cause. This objection was overruled by the court, to which ruling appellants excepted.
Appellants filed a demurrer to the amended petition, which was overruled, to which ruling the appellants excepted. Appellants filed an answer in three paragraphs to the amended petition, the first paragraph being a general denial. Appellee, petitioner (hereinafter called petitioner), filed his demurrer to the second paragraph of answer, which was sustained by the court to which ruling appellants excepted.
Petitioner filed his motion to strike out appellants' third paragraph of answer and cross-complaint, which motion was sustained by the court, to which ruling the appellants excepted.
The petition was submitted to the court for hearing, and evidence was heard for the purpose of identifying the said lots as the same real estate that was described by metes and bounds in said petition. To this evidence appellants objected, and excepted to the court's ruling in admitting it. There was a judgment that the petitioner was entitled to immediate possession of said real estate, describing the same both by lot numbers and by metes and bounds, and that the appellants be ejected and dispossessed, and that a writ of assistance be issued by the clerk of the court to the sheriff, directing him to eject and dispossess appellants from said real estate and to place the petitioner in the immediate possession thereof. After motion for a new trial, which was overruled, this appeal is prosecuted.
Appellants have assigned fourteen errors upon which they rely for reversal, one of which is overruling their motion for a new trial, in which motion ten errors are specified. Of these alleged errors we need only to discuss such as are contained under appellants' points and authorities, as all others are waived. These in their order:
Appellants contend that said petition is not sufficient to withstand their demurrer, for the reason that it fails to set out the sheriff's deed to appellee, or a copy of the notice to appellants that application for the writ of assistance is being made. But this is not an action based upon said deed or notice, or any other written instrument. This is a summary proceeding for a writ of assistance to obtain the possession of real estate wrongfully withheld from petitioner by appellants, after their title thereto has been divested in a...
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