Eckert v. Binkley
| Decision Date | 22 February 1893 |
| Docket Number | 15,699 |
| Citation | 33 N.E. 619,134 Ind. 614 |
| Parties | Eckert et al. v. Binkley et al |
| Court | Indiana Supreme Court |
Reported at: 134 Ind. 614 at 623.
From the Marion Superior Court.
The judgment is reversed, with directions to require said court at special term to overrule the demurrer to the supplemental answer to the complaint, and for further proceedings not in conflict with this opinion.
A. C Harris, for appellants.
V Carter, for appellees.
This case is here for the second time. See Binkley v. Forkner, 117 Ind. 176, 19 N.E. 753.
The facts, so far as necessary for this appeal, are these: In March, 1883, John M. Kemper, then a resident of Marion county, purchased of Eckert brothers, appellants, a tract of land in Dubois county, upon which to erect a heading factory. On March 7th, 1883, he executed to said appellants his notes for one thousand dollars, the purchase-price, secured by mortgage on the land. Before purchasing the land, Kemper had given to Hadley, Wright & Co., manufacturers of the city of Indianapolis, an order for certain machinery to be used in said factory; and on March 5th, 1883, while the machinery was still in the shop of the manufacturers, in Indianapolis, he gave them a chattel mortgage upon it, to secure the purchase-price, seventeen hundred dollars. Afterwards Kemper executed a second mortgage on the land to Forkner and others, bankers, to secure a debt to the bank. Hadley, Wright & Co. assigned their chattel mortgage to Charles C. Binkley, appellee, who brought this suit in the Marion Superior Court against Kemper, Eckert Brothers, appellants, Forkner, Barton & Ross, bankers, and Frank Joseph, sheriff of Dubois county. On the trial of said suit judgment was given the defendants in the special term, which was affirmed at the general term of the superior court. In the superior court the Eckert Brothers, who are the sole appellants here, had set up in answer to the complaint of Charles C. Binkley, assignee of the chattel mortgage, and sole appellee here, their alleged lien on said machinery by virtue of their mortgage on the real estate in Dubois county, alleging, also, that they had brought suit thereon, in which they had asserted that said machinery was attached to, and a part of, said real estate. To this answer appellee replied at great length, maintaining the personal character of the machinery, and asking that the lien of his chattel mortgage be found a first lien by the court. After the judgment in favor of Eckert Brothers, Charles C. Binkley appealed to this court. Binkley v. Forkner, supra. On the appeal the judgment of the superior court was reversed, this court holding that the machinery was personal property, and remained subject to the lien of the chattel mortgage. On the return of the case to the superior court for a new trial, the appellants, Eckert Brothers, filed what they called a supplemental answer, setting up facts alleging an estoppel by judgment. Appellee Binkley moved to strike out this answer, which motion was overruled. Appellee then filed a demurrer to the answer, and this was sustained. On the ensuing trial, the court, after a finding of the facts, rendered judgment for this appellee, sustaining the chattel mortgage, and ordering the machinery sold to pay the claim of appellee. Appellants moved the court in arrest of judgment as against them, and afterwards moved for a new trial, both of which were overruled. Appellants then appealed to the general term, assigning as errors the sustaining of appellee's demurrer to the supplemental answer, and the overruling of their own motion for a new trial. The general term affirmed the judgment of the special term, and this appeal followed.
The only parties to this appeal are Eckert Brothers, appellants, and Charles C. Binkley, appellee.
The error here assigned is that the Marion Superior Court, in general term, erred in affirming the judgment of said court at special term.
The record shows that before filing their motion for a new trial, the appellants had filed a motion in arrest of judgment. We think that by filing their motion in arrest appellants waived their right to move for a new trial. A motion in arrest of judgment cuts off the right to a motion for a new trial, except only where the grounds of the motion for a new trial are unknown at the time the motion in arrest is made. Elliott's App. Proced., section 834; Cincinnati, etc., R. W. Co. v. Case, 122 Ind. 310, 23 N.E. 797, and authorities there collected.
This leaves for our consideration the ruling of the court at special term in sustaining appellee's demurrer to the supplemental answer.
So much of said supplemental answer, as we need consider, alleged that appellee was not entitled to any relief against appellants, for the reasons, that in February, 1883, appellants sold to John M. Kemper, then in life, the land in Dubois county, hereinbefore described, upon which he desired to erect a factory. On July 10th, 1883, the building and machinery for said factory having been erected on said land by said Kemper, appellants executed to him a deed of warranty for the premises, and in payment therefor, in pursuance of the terms of the agreement of sale made in February previous, said Kemper executed to appellants his promissory notes for one thousand dollars, secured by mortgage on the premises sold; that afterwards, on February 4th, 1884, appellee began this suit to foreclose his chattel mortgage on said machinery, making appellants, with others, parties thereto. On March 11th, 1884, the said debt of Kemper being due and unpaid, appellants brought suit in the Dubois Circuit Court against said Kemper and against appellee and others to foreclose their said mortgage on said land. Appellee appeared to said action and pleaded thereto. On change of venue to Gibson county, the cause came on for hearing at the January term, 1885, of the Gibson Circuit Court, and appellee then and there also appeared and filed pleas in bar and in cross-complaint against appellants, plaintiffs in that case, putting in issue the question as to the priority of his claim or lien, set forth in the pleadings in this court and cause, over the mortgage of appellants in that court and cause; and also putting in issue the question as to whether the machinery, upon which in this cause he claims a mortgage, was or was not real or personal property, as between him, the said Binkley, appellee, and the said Eckerts, appellants herein.
And the issue being joined, the cause came on for trial in the said Gibson Circuit Court on the 24th day of February, 1885, and the court then and there decided said issue as follows:
And the court did then and there adjudge as follows:
"It is therefore considered and decreed by the court, that said mortgage be foreclosed and forever barred; that the heading factory, boiler, steam engine, heading, equalizing and track saws, and all the machinery situate on said real estate, is a part and parcel of the real estate above described, and are permanent fixtures attached thereto; and that the real estate above described be sold by the sheriff of Dubois county Indiana, as other lands are sold on execution, without relief from valuation or appraisement laws, to satisfy...
To continue reading
Request your trial