Chandler v. Citizens' Nat. Bank of Evansville

• Citation: 149 Ind. 601,49 N.E. 579
• Parties: CHANDLER et al. v. CITIZENS' NAT. BANK OF EVANSVILLE.
• Decision Date: 25 February 1898
• Court: Indiana Supreme Court

149 Ind. 601

49 N.E. 579

CHANDLER et al.

v.CITIZENS' NAT. BANK OF EVANSVILLE.

Supreme Court of Indiana.

Feb. 25, 1898.

Appeal from superior court, Vanderburgh county; John H. Foster, Judge.

Action by the Citizens' National Bank of Evansville against John J. Chandler and Jordan Giles. Defendant Giles filed a cross complaint setting up a demand for certain bonds held by plaintiff as collateral security. From a judgment in favor of plaintiff, and awarding but a part of the bonds to defendant Giles, defendant Giles appeals. Affirmed.

J. E. Williamson and Geo. Palmer, for appellant. Azro Dyer, for appellee.

JORDAN, J.

The Citizens' National Bank of Evansville, Ind., brought this action against John J. Chandler to recover upon certain promissory notes held by it, and to foreclose a lien on bonds pledged as a security for the payment of the notes. The complaint, among other things, averred that the appellant, Giles, claimed, or asserted some title or interest in, the bonds in suit, and he was made a party defendant to the action to answer to his interest. Giles entered his special appearance, and moved to quash the summons and to set aside the return of service. This motion the court denied, and an exception was duly reserved to this ruling. Appellant then entered a general appearance to the action, and filed an answer in denial. Subsequently he filed a cross complaint making the plaintiff and his co-defendant, Chandler, party defendants thereto. In this pleading he averred that he was the owner of the bonds described in the plaintiff's complaint, and demanded that the court order that they be delivered up and surrendered to him. Issues were joined between the appellant and the plaintiff and co-defendant upon the cross complaint, and a trial resulted in the court awarding a judgment in favor of the bank against Chandler for $9,000, and decreeing that the lien which the plaintiff held upon a part of the bonds be foreclosed, and further adjudging that a portion of the bonds involved in the suit belonged to the appellant, Giles, and these were ordered to be surrendered to him. He then moved for a new trial, which was denied, and he appealed from the judgment to this court. The overruling of his motion on special appearance to quash the summons and set aside the service thereon is the only alleged error of which appellant complains and presents for review. No attempt is made by the appellee to sustain the sufficiency of the summons, or its service upon the appellant, but it is insisted that he, by filing his cross complaint against the plaintiff and his co-defendant in the action, thereby submitted his person to the jurisdiction of the court as to the entire cause, and consequently any question in respect to the jurisdiction of his person under the original process was waived. Appellant, as it appears, after the court had denied his motion to quash the original process and set aside the return of service, entered a full appearance, and filed a general denial as his answer to the complaint. Thereafter he filed a cross complaint, instituting thereby a cross proceeding in the original cause against the plaintiff and his co-defendant, whereby he sought to be adjudged the owner of, and obtain the possession of, the bonds set up in the complaint. Not only did he demand affirmative relief, but the court, by its judgment from which this appeal is prosecuted, awarded to him the relief in part which he asked.

The settled rule in this jurisdiction, and in others also, is that a party to an action, who, under a special appearance in due season, unsuccessfully denies the jurisdiction of the court over his person, does not waive the question of jurisdiction of his person by thereafter answering over, and going to trial upon the merits of the cause of action. The authorities assert that the defendant, under such circumstances, having at the very threshold resisted the jurisdiction of the court in a legitimate manner to the full extent of his power, is not required to desert the case, and leave his adversary to take judgment against him on default. Elliott, App. Proc. §§ 677, 678; Avery v. Slack, 17 Wend. 85;Jones v. Jones, 108 N. Y. 415, 15 N. E. 707;Hadley v. Gutridge, 58 Ind. 302. It would, in reason, seem, when a defendant went further than he was...