Emerick v. Miller

• Decision Date: 21 May 1902
• Docket Number: 19,341
• Citation: 64 N.E. 28,159 Ind. 317
• Parties: Emerick v. Miller et al
• Court: Indiana Supreme Court

64 N.E. 28

159 Ind. 317

Emerick v. Miller et al

No. 19,341

Supreme Court of Indiana

May 21, 1902

Rehearing Denied October 14, 1902.

From Wabash Circuit Court; U. Z. Wiley, Special Judge.

Proceeding for a writ of assistance by Harry L. Miller against Louisa G Emerick. From a decree for plaintiff, defendant appeals. Transferred from Appellate Court, under § 1337j Burns 1901.

Affirmed.

M Winfield and E. S. Morris, for appellant.

John Mitchell, W. B. McClintic, H. P. Loveland and R. J. Loveland, for appellee.

OPINION

Hadley, J.

Appellee being the grantee of the purchaser at sheriff's sale in a foreclosure proceeding, and being denied by the judgment defendant possession of a part of the premises purchased, upon notice and motion procured a redocketing of the foreclosure case, and thereupon filed his petition for a writ of assistance. The undisputed facts set forth in the petition are to the effect following: The foreclosure complaint was sufficient; appellant was the sole mortgagor defendant, and was timely and duly summoned to appear thereto; she did not appear, and a decree of foreclosure was duly entered against her, and a sale thereunder of the mortgaged premises was made by the sheriff to Milton Shirk, a judgment plaintiff, in accordance with the law and decree, March 19, 1898, for the full amount of the judgment, principal, interest, and costs. There was no redemption, and the year having expired March 21, 1899, a deed conveying the property was duly executed and delivered by the sheriff to the purchaser. Ten days after the conveyance to Shirk, and the record of his deed in the recorder's office of the county, to wit, April 1, 1899, appellant, who had all the time since the rendition of the decree been a resident of the county, and possessed of knowledge of the decree and sale of her land, filed in the Miami Circuit Court her complaint against the judgment plaintiffs for relief against said decree and sale, for fraud of the plaintiffs in the procurement of the decree. During the formation of the issues in her case, upon motion of the defendants, she was summoned to appear and answer, under oath, certain questions to be propounded to her by the defendants touching the issues. She did appear and make answers which were taken down in shorthand, and when put in longhand she refused to subscribe her name thereto. Her refusal to sign was reported by the defendants to the court, whereupon the court, on defendants' motion, entered an order against her to show cause why she did not sign said answers, on penalty of a dismissal of her cause. She did not obey said order, and the court thereupon, May 25, 1899, dismissed her suit.

Appellant, in her answer, having admitted the foregoing facts, affirms that she had, at the time the foreclosure suit was commenced, and still has, a meritorious defense thereto, which she neglected to make, by the fraud of the plaintiffs, which defense she sets forth in detail, and that the reason she refused to sign her answers to interrogatories was because she was denied the privilege of first taking the longhand manuscript thereof with her to read over and submit to her attorney for his counsel; that after the dismissal of her suit for failure to obey the order of the court, to wit, on June 22, 1899, Shirk, the purchaser, conveyed the property by quitclaim deed to appellee Miller, who at the time of his purchase had knowledge of the fraudulent character of the judgment; that she refused, upon Miller's demand, and still refuses, to surrender possession. There is no averment that she has or intends to renew the dismissed action, or take any other step for relief against said decree and sale. This action was commenced on the 11th day of October, 1899. The petitioner's demurrer to the answer was sustained.

The assignment propounds for decision the following questions: (1) Has the circuit court, sitting as a court of equity, since the adoption of our practice code, power to issue the summary writ of assistance to put the purchaser at its foreclosure sale in possession? (2) If the power exists, can it, in any case, be invoked by the grantee of the purchaser? (3) Are the facts exhibited by the answer sufficient in equity to warrant a denial of the writ?

I. Appellant, while conceding that courts of equity, under the old practice, had the power to employ the writ of assistance in the enforcement of their decrees, contends that by our code of procedure the power has been supplanted by the remedial modes prescribed by the statute; the argument being that since the legislature has abolished the distinction in pleading and practice between legal and equitable causes, and provided a special remedy, in all cases, for obtaining possession of real estate wrongfully withheld, no other mode can exist by implication. The statute, § 249 Burns 1901, provides that "There shall be no distinction in pleading and practice between actions at law and suits in equity; and there shall be but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action." It will be observed that the statute is directed solely to court procedure; to the striking down of the particular names, the technical forms, and classification of actions under the old law; and to the presentation of a scheme supposed to simplify judicial proceedings, whereby the plaintiff is at liberty to state the facts of his case to the court in writing, and if, according to his statement, he appears to be entitled to relief of any kind, legal or equitable, he will have a good complaint, be in the right court, and entitled to receive whatever is justly his.

Simplification of procedure may be said to be the full scope and purpose of the code. The statute does not pretend to, nor does it in any sense, abridge the inherent power of the courts, nor affect the rights of parties, or the remedies formerly given for a violation of those rights, further than to change, in some instances, the means by which the remedy may be obtained. Neither were the rules of law nor the principles of equity changed by blending in the same form of action, and by being permitted to run together through the same proceeding. Matlock v. Todd, 25 Ind. 128; Woodford v. Leavenworth, 14 Ind. 311, 314; Bliss, Code Pl. (3d ed.), §§ 5, 6, and note 17. Therefore, in the absence of express limitation in the code, we find no reason for holding that those rules and principles, which long experience found necessary to a dispensation of complete justice in certain cases, may not still be applied to facts which come within the class that gave rise to the remedy.

There is no warrant for construing § 1062 Burns 1901, as creating a specific and exclusive remedy for the recovery of possession of real estate under the modified system of pleading and practice. The similar but more formal remedy of ejectment is of very ancient origin, and coexisted with the writ of assistance for a long period before our code was thought of. Both remedies had been found necessary to the full administration of justice, the action of ejectment to courts of law for the settlement of controverted questions relating to possession and possessory titles; and the writ of assistance to courts of equity, in certain cases only, not in aid of their jurisdiction, but to enable them to carry out and make complete the execution of their decrees. Appellant's counsel say in their brief: "As emphasizing our contention that the action for possession, provided in § 1062, supra, is the only mode in which the possession of real property may be recovered, it is expressly provided in § 1096 Burns 1901 that 'the plaintiff shall be entitled to an execution for the possession of his property, in accordance with the provisions of this act, but not otherwise.'" We can not concede that the section quoted adds any strength to appellant's argument, or that it is even pertinent. By reference to the original act (Acts 1881, p. 363) it will appear (1) that the word "act" in the last line should read "article,"--a mistake that found its way into the revision of 1881, and has been adopted by every subsequent compiler; (2) the section occurs under the article or subtitle of the code "Occupying Claimant," and has special and exclusive reference to the conditions upon which the successful plaintiff against the occupying claimant who has improved and enhanced the value of the real estate may have execution for possession.

In Kershaw v. Thompson, 4 Johns Ch. 609, Chancellor Kent says: "The distribution of power among the courts would be injudicious, and the administration of justice exceedingly defective, and chargeable with much useless delay and expense, if it were necessary to resort, in the first instance, to a court of equity, and afterwards to a court of law, to obtain a perfect foreclosure of a mortgage. It seems to be absurd to require the assistance of two distinct and separate jurisdictions for one and the same remedy, viz., the foreclosure and possession of the forfeited pledge. But this does not, upon due examination, appear to be the case; and it may be safely laid down as a general rule, that the power to apply the remedy is coextensive with the jurisdiction over the subject-matter. A bill to foreclose the equity of redemption is a suit concerning the realty, and in rem; and the power that can dispose of the fee, must control the possession. The parties to the suit are bound by the decree; their interests and rights are concluded by it; and it would be very unfit and unreasonable, that the defendant, whose right and title had been passed upon and foreclosed by the decree, should be able to retain the possession, in despite of the court. This is not the doctrine...