Eckert v. Binkley

• Citation: 33 N.E. 619, 134 Ind. 614
• Case Date: February 22, 1893
• Court: Supreme Court of Indiana

134 Ind. 614
33 N.E. 619

ECKERT et al.
v.
BINKLEY et al.¹

Supreme Court of Indiana.

Feb. 22, 1893.

Appeal from superior court, Marion county; N. B. Taylor, Judge.

Action by Charles C. Binkley and others against Jacob Eckert and others to foreclose a chattel mortgage. Judgment for Binkley, and defendants appeal. Reversed.

A. C. Harris, for appellants. Vinson Carter, for appellees.

HOWARD, J.

This case is here for the second time. See Binkley v. Forkner, 117 Ind. 176, 19 N. E. Rep. 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 Bros., appellants, a tract of land in Dubois county, upon which to erect a heading factory. On March 7, 1883, he executed to said appellants his notes for $1,000, 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 5, 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, $1,700. 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 Bros., 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 Bros., 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 Bros., filed

[33 N.E. 620]

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 Bros., 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, App. Proc. § 834; Railway Co. v. Case, 122 Ind. 310, 23 N. E. Rep. 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 10, 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 $1,000, secured by mortgage on the premises sold. That afterwards, on February 4, 1884, appellee began this suit to foreclose his chattel mortgage on said machinery, making appellants, with...