Davis v. Clements
| Decision Date | 29 October 1897 |
| Docket Number | 18,203 |
| Citation | 47 N.E. 1056,148 Ind. 605 |
| Parties | Davis, Sheriff, v. Clements |
| Court | Indiana Supreme Court |
From the Montgomery Circuit Court.
Reversed.
H. H Ristine, for appellant.
M. M Bachelder and George Harvey, for appellee.
This action was brought by appellee against appellant, as sheriff of Montgomery county, to enjoin him from paying out money as ordered by a judgment and decree of foreclosure, as shown by a copy of the decree in his hands for execution.
It is alleged in the complaint that "the Ladoga Building Loan, etc., Association, on December 14, 1895, obtained in the Montgomery Circuit Court against appellee and her husband, a judgment for $ 541.11 and costs and a decree of foreclosure for the sale of certain real estate (describing it); that in said decree the appellant as sheriff was ordered to sell said real estate and apply the proceeds of sale as follows: first, to the payment of costs; second, on judgment of the Ladoga Building, etc., Association; third, on judgment of record, held by Daniel J. Davis and Thomas Rankin against Robert Clements; fourth, on judgment of John Maloney against Robert Clements; that Robert Clements is and was at the time of executing mortgage to the Ladoga Building, etc., Association the owner in fee simple of said real estate, and that the appellee was at the time of execution of said mortgage, and ever since has been the wife of said Clements; that she signed said mortgage and is entitled to a one-third interest in said real estate, and is entitled to have said cost and judgment on mortgage paid out of said Clements' two-thirds interest in said real estate, before coming into her one-third interest, and that she is entitled to have one-third of the proceeds of the sale of said land paid to her before any shall be applied on the other judgments against said Clements; that the decree ordering an application of any of the proceeds from said sale upon other judgments than the Ladoga Building, etc., Association is not binding upon her one-third interest; that she was not made a party to a cross-complaint by any co-defendant in said foreclosure proceedings; that the appellant has advertised said real estate to be sold on the 25th day of July, 1896, and he will sell the same on that day, and will, unless otherwise ordered by the court, apply the proceeds in the order named in said decree, which would greatly injure her and defraud her of her one-third interest in said real estate; that said real estate is worth $ 1,200.00, and she will thereby be defrauded out of $ 400.00," etc. Appellant's demurrer to the complaint for want of facts was overruled.
After issues were formed, the cause was tried by the court, and a special finding made and conclusions of law stated thereon in favor of appellee, to each of which conclusions of law appellant excepted.
Before the trial of said cause, appellant sold said real estate on said decree for $ 1,200.00, and the court rendered judgment on the special finding, that appellant pay to the clerk of the court, for the benefit of appellee, all the proceeds of said sale remaining after the payment of the cost of said sale and the amount of the judgment and decree in favor of the Ladoga Building, etc., Association, not exceeding, however, $ 400.00.
It is settled law that a proceeding to enjoin the enforcement of a judgment or decree by execution or decretal order is a collateral attack upon the judgment, and cannot be maintained for mere errors or irregularities, but only by showing that the judgment or decree, or the part thereof, the enforcement of which is sought to be enjoined, is void. Shrack v. Covault, 144 Ind. 260, 43 N.E. 229; Krug v. Davis, 85 Ind. 309, and cases cited; Earl v. Matheney, 60 Ind. 202; Gum-Elastic Roofing Co. v. Mexico Pub. Co., 140 Ind. 158, 30 L.R.A. 700, 39 N.E. 443, and cases cited; Fitch v. Byall (Ind. App.), 47 N.E. 180.
The presumption is, that the part of the decree sought to be impeached by appellee, a party thereto, being rendered by a court of general jurisdiction, is valid, and unless the facts stated in the complaint are sufficient to overcome or exclude this presumption, the demurrer thereto should have been sustained. Exchange Bank v. Ault, 102 Ind. 322, 327, 1 N.E. 562; Bailey v. Rinker, 146 Ind. 129, 45 N.E. 38, and cases cited; Cassady v. Miller, 106 Ind. 69, 71, 72, 5 N.E. 713, and cases cited; Indiana Oolitic Limestone Co. v. Louisville, etc., R. W. Co., 107 Ind. 301, 305, 7 N.E. 244, and cases cited; Sims v. Gay, 109 Ind. 501, 503, 9 N.E. 120, and cases cited; Phillips v. Lewis, 109 Ind. 62, 68, 9 N.E. 395; Nichols v. State, 127 Ind. 406, 413, 26 N.E. 839.
Appellee contends that co-defendants can have no relief as between themselves, except upon a cross-complaint to which the defendants between whom the relief is sought are made parties, and that under this rule the complaint was sufficient to withstand the demurrer for want of facts. While there are authorities which sustain the rule as stated by appellee, there are cases which...
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