Bryant v. Richardson
| Decision Date | 21 November 1890 |
| Docket Number | 14,327 |
| Citation | 25 N.E. 807,126 Ind. 145 |
| Parties | Bryant v. Richardson et al |
| Court | Indiana Supreme Court |
From the Lake Circuit Court.
Judgment affirmed, with costs.
W. C McMahan and F. J. Crawford, for appellant.
T. S Fancher, for appellees.
This is an action by the appellant against the appellees for judgment on a note, and for the foreclosure of a mortgage, or what is designated a deed of trust, executed to secure the note.
There were two paragraphs of the complaint, but the first was dismissed before the rendition of the final judgment appealed from.
The second paragraph, upon which the case was finally tried, alleged that the appellee Nellie Chesbrough, on the 13th day of August, 1879, by her promissory note, now overdue and unpaid, promised to pay to the order of herself the sum of $ 500, at Crown Point, Indiana, five years after date, with interest thereon at the rate of eight per cent., and endorsed and delivered the same to the appellee Adam Harshberger, who immediately endorsed and delivered the same to the appellant, Bryant, who loaned $ 500 to appellees W. Henry Williams and Mary A. Williams, for whose accommodation said note was given; that said Harshberger guaranteed the payment of said note at maturity; that to secure the payment of said note appellees W. Henry Williams and Mary A. Williams, his wife, for whose accommodation said note was given, and for other good and valuable considerations, on the day of the date of the note duly executed their deed of trust, or mortgage, to the appellee L. D. Terhune, as trustee, in which said Adam Harshberger was named as successor in trust upon certain conditions therein stated, whereby they mortgaged the undivided one-half of certain real estate situate in the village of Clark, in the county of Lake, and State of Indiana, and which deed of trust, or mortgage, was afterwards, on the 29th day of November, 1879, duly recorded in the recorder's office of Lake county. It is further alleged that said William C. B. Richardson was the owner of the other undivided one-half of said property, and after said deed of trust was given and recorded, with notice thereof, he purchased the undivided one-half included in said mortgage. Prayer for judgment on the note and foreclosure of the deed of trust as a mortgage. Copies of the note and deed of trust were filed as exhibits and made a part of the complaint.
Prior to the bringing of the suit there had been a cancellation of the mortgage of record entered by said Harshberger, and the first paragraph of the complaint alleged the fact that the same had been cancelled, and asked to have the cancellation set aside, and for a foreclosure.
Notice having been given by publication on the 15th day of May, 1885, judgment was rendered for the appellant upon default, order of sale issued, and the property was sold on the 11th day of July, 1885.
On the 20th day of January, 1887, William C. B. Richardson filed a petition to open and vacate the judgment, which motion was afterwards sustained, and the judgment was set aside and vacated, and an answer filed in three paragraphs, and afterwards, and upon the trial of the cause, a fourth paragraph was filed.
The application of Richardson to open the judgment and allow him to defend was made under sections 600 and 601, R. S. 1881.
Objection is made by the appellant to the journal proceedings and entries. The record shows the filing of the answer in three paragraphs at the time of the entry of the order opening the judgment.
The record entry is as follows: "It is therefore ordered and decreed by the court that the judgment and decree heretofore entered at the April term, 1885, in order-book V, page 556, be vacated and held for naught, and that a new trial be granted, and the defendant files answer in the words and figures following, to wit," then follows the answer.
This, it is contended, is not a compliance with section 601, supra, for the reason that said section requires the answer to be filed before the judgment shall be opened. There is no contention but that the statute was complied with in every particular except that the answers were filed at the time of making the order. Notice had been given as required by the section, and the proper petition and affidavit had been filed.
The object of requiring an answer to be filed is to prevent delay, so that when the judgment is opened an answer will be on file; that if a party has the judgment rendered in his favor set aside, he shall be furnished with an answer at once, without being required to take a rule, and there is a substantial compliance with the statute in this case, as the record shows that at the same time the court made the order opening the judgment, the appellee filed his answer.
The order opening the judgment and the record of the filing of an answer are entered at the same time, as one entry; indeed, we think this the proper practice, to show the filing of the answer after the opening of the judgment. The filing of the answer is one step in making a defence, and the party can not defend until the judgment is opened. The purpose of opening the judgment is to allow a defence. It would no doubt be proper to state in the petition, or for the record to show, an offer to file the answer, but a filing at the time of the entry opening the judgment is a sufficient compliance with the statute.
Upon the trial of the cause the appellant dismissed the first paragraph of his complaint, and thereupon the appellee Richardson asked and obtained leave of court to file an additional fourth paragraph of answer. This was objected to by the appellant, and exceptions reserved, and it is insisted upon as error.
It is contended by counsel for appellant that as the statute, section 601, supra, provides that the party shall file a full answer, he is required to file all the answers he desires at that time, and that he can not afterwards file an additional paragraph. We can not agree with this theory. Certainly the plaintiff might demur to an answer, and if sustained the court could allow an amended answer filed. After the judgment is opened, and set aside, as in this case, and an answer filed, the cause is upon the docket for the making up of issues, and trial, as in other cases; and when the appellant dismissed his first paragraph of complaint it was within the discretion of the trial court to allow the defendant to file an additional paragraph of answer.
The next alleged error discussed is the overruling of appellant's demurrer to the fourth paragraph of Richardson's answer.
This paragraph of answer alleges that on the 7th day of April, 1880, the appellant, by his agent, one Adam Harshberger, duly released and cancelled said mortgage, and entered said release of record, on the margin of the record opposite to the record of said mortgage, but in said release said mortgaged premises are erroneously and mistakenly described as in section 36, when in truth and in fact it is and was, in section 31, and said release so executed and recorded was intended by appellant and the mortgagor to release and cancel the mortgage in controversy; and that on the 3d day of July, 1880, one Brown bought said real...
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