Brown v. Eaton

• Decision Date: 13 December 1884
• Docket Number: 10,294
• Citation: 98 Ind. 591
• Parties: Brown v. Eaton
• Court: Indiana Supreme Court

98 Ind. 591

Brown v. Eaton

No. 10,294

Supreme Court of Indiana

December 13, 1884

From the Sullivan Circuit Court.

D. W Voorhees, N. G. Buff, J. R. Patten and J. C. Denny, for appellant.

S Coulson, for appellee.

OPINION

Black C.

This was an action brought against the appellee by the appellant William Brown, upon a judgment for a certain sum of money recovered against the appellee, in the city court of East St. Louis, St. Clair county, State of Illinois, by Jeremiah Brown, and assigned by him to the appellant; said court being one of special and limited jurisdiction, created by a private statute.

The appellee answered in five paragraphs, the first being a general denial. The appellant demurred to each of the other paragraphs, and the demurrer was overruled. There was a reply in denial. A trial by jury resulted in a verdict for the defendant. The plaintiff's motion for a new trial was overruled, and judgment was rendered for the defendant. The overruling of the demurrer to the answer and the overruling of the motion for a new trial are assigned as errors.

In the second paragraph of answer it was, in effect, alleged that at and before the time of the commencement and prosecution of the suit upon the pretended record of which this action was brought, the defendant was not a citizen or resident of said St. Clair county, or of the State of Illinois, but he then was, and he still was, and during his whole life he had been, a citizen and resident of Sullivan county, in this State; that no summons or other mesne process or notice of any kind whatever of the institution or pendency of said suit in said court was ever served upon or given to him in said cause; that he had no notice or knowledge of the institution or pendency of said suit till long after the date at which it was alleged that said judgment was rendered, when he heard, at his home in this State, that said Jeremiah Brown claimed to have recovered a judgment against him, the defendant; that he did not appear in said action, because he had no knowledge of its pendency; neither did he authorize or empower any one else to appear for him or in his behalf; that he was not and had not been, at, before or since the commencement of said action, indebted to said Jeremiah Brown in any sum whatever; but that he and the plaintiff herein and one Holbrook, who claimed to be acting as deputy to Michael Walsh, marshal of said city of East St. Louis, and who made the return upon the summons alleged to have been issued in said cause, combined and confederated together for the purpose of cheating and defrauding the defendant, by then and there making false and fraudulent papers, returns, proceedings, judgment and records against this defendant, in said cause, and falsely and fraudulently made and procured and caused said Holbrook, deputy, to make a false and fraudulent return upon a summons issued by the judge of said court in said cause (the return of the marshal by said deputy being here set out, showing service on the defendant by reading), with the false and fraudulent intent to thereby falsely and fraudulently give said court and judge apparent jurisdiction in said cause over the person of the defendant, and to falsely and fraudulently make such jurisdiction affirmatively appear in such record; whereas, in truth, said summons was not served upon this defendant personally by reading the same to him, or in any other manner, and the defendant did not have any notice or knowledge of the existence of said writ of summons.

In the third paragraph it was alleged, in substance, that the defendant Lewis S. Eaton was not the Lewis S. Eaton upon whom the summons issued in said suit was served, and against whom a judgment was rendered as set out in the complaint; that no summons or other writ or notice of the pendency of said suit was ever served upon this defendant; that at the time, and for a long time previous thereto, he was, and he ever since has been, a citizen and resident of Sullivan county, in this State, and had no notice or knowledge of the commencement and pendency of said suit, or the issuing or service of said summons; that he was not then, or at any time previous thereto, and has not been since, indebted to said Jeremiah Brown in any sum, all of which the plaintiff herein well knew.

The fourth paragraph of answer alleged, "by way of cross complaint," facts the same in substance as those alleged in the second paragraph, and prayed an injunction against the collection of said judgment. The only ground of demurrer assigned was that it did not state facts sufficient to constitute a cause of defence. This did not raise the question of the sufficiency of the facts stated as matter of counter-claim, and if the demurrer had done so, it would be an immaterial question here, as no injunction was granted.

No argument is presented by the appellant upon the fifth paragraph of...