Duringer v. Moschino

• Decision Date: 22 February 1884
• Docket Number: 10,063
• Parties: Duringer v. Moschino
• Court: Indiana Supreme Court

93 Ind. 495

Duringer v. Moschino

No. 10,063

Supreme Court of Indiana

February 22, 1884

From the Jennings Circuit Court.

J. D New, T. C. Batchelor, J. New, J. S. Duncan, C. W. Smith and J. R. Wilson, for appellant.

A. G Smith, for appellee.

OPINION

Black C.

The appellant sued the appellee in the court below upon a judgment recovered December 19th, 1877, by the former against the latter, in the court of common pleas of Hamilton county, Ohio, for a certain sum. The defendant answered, admitting the recovery of the judgment, and alleging that it was obtained by the fraud of the plaintiff; that at and for ten years before the time of its rendition the defendant was, and he still continued to be, a resident of Jennings county, Indiana; that during said time the plaintiff was, and he still was, a resident of Hamilton county, Ohio; that at the date of the rendition of said judgment, and at the commencement of the suit in which it was rendered, the defendant was in no wise indebted to the plaintiff, and the former, at the time of making this answer, was not indebted to the latter in any sum; that for a year prior to the rendition of said judgment the defendant had a contract with the plaintiff to furnish him at Cincinnati, Ohio, fourteen thousand staves; that the defendant faithfully performed his part of the contract, but the plaintiff, designing to cheat and defraud the defendant and to procure said judgment against him by fraud, upon a false and fraudulent demand growing out of said contract and transaction, caused suit to be instituted against him in the common pleas court of Hamilton county, Ohio, on a pretended and fraudulent claim for damages and for money falsely claimed to be due the plaintiff, and therein sued out of said court a writ of attachment, and caused to be attached a certain quantity of staves shipped by the defendant to one Nicholas Budd, at Cincinnati; that the defendant, to defend against said attachment, went to Cincinnati, at the request of the plaintiff, who thereupon dismissed his said attachment proceedings, and caused the defendant to be served with process in said suit; that after the service of process, and on the same day thereof, the plaintiff and the defendant met and mutually settled all differences between them concerning said contract and all other matters between them, and thereupon the plaintiff informed the defendant that the former had been mistaken in his accounts when he brought suit, and, with intent to cheat and defraud the defendant and to induce him not to defend said suit, the plaintiff persuaded and prevailed upon the defendant not to employ a lawyer to appear and defend said suit, at the same time promising and assuring the defendant that the plaintiff would cause it to be dismissed, as a part of said agreement and settlement, and that the defendant need not give himself any further concern about it; that the defendant, believing the plaintiff was acting in good faith, and relying on his promise to dismiss said suit, did not employ counsel to defend it, but, at the plaintiff's request, returned to the defendant's home in Jennings county, Indiana; that the plaintiff, for the purpose of further deceiving and defrauding the defendant, and to induce him not to defend said suit, and to put him off his guard, did, within ten days after said agreement and about the time the cause was set for hearing, write to the defendant, then in said Jennings county, that the plaintiff had dismissed said suit as he had agreed to do; that the defendant, relying upon the agreement that the plaintiff would dismiss the suit, and upon his statement that he had done so, gave the matter no further attention, believing all the time that the suit had been dismissed until the bringing of this suit; whereas, in truth, the plaintiff, disregarding said agreement to dismiss, and intending to cheat and defraud the defendant, caused judgment to be taken against him by default in said common pleas court, which was the judgment sued on herein.

Prayer for judgment for costs and that said judgment sued on be declared fraudulent and void, and for all proper relief.

A demurrer to this pleading for want of sufficient facts to constitute a defence, was overruled.

A reply in denial having been filed, the cause was tried by jury, the verdict being for the defendant. A motion for a new trial was made by the plaintiff and was overruled, and judgment was rendered that the plaintiff take nothing, and that the defendant recover costs.

The assignment of errors questions the action of the court in overruling the demurrer to the answer, and in overruling the motion for a new trial.

If the answer had not shown fraud in the procurement of the judgment after the Ohio court obtained jurisdiction of the person of the defendant, the answer would have been insufficient, for while we think that if the plaintiff by his fraud induced the defendant to go within the jurisdiction of the Ohio court for the purpose of obtaining service of process upon the defendant, and the court's jurisdiction of his person was thus obtained, the defendant would not need to appear in that court and show this abuse of its process, but might set up such fraud as a defence to the action brought in this State upon the judgment (Dunlap v. Cody, 31 Iowa 260; 7 Am. R. 129), yet it was not shown by this answer that the plaintiff used any force or false representations or suppression of the truth for the purpose of getting the defendant within the jurisdiction of the Ohio...