Fletcher v. Barton

• Citation: 108 N.E. 137,58 Ind.App. 233
• Decision Date: 10 March 1915
• Docket Number: 8,519
• Parties: FLETCHER v. BARTON
• Court: Court of Appeals of Indiana

108 N.E. 137

58 Ind.App. 233

FLETCHER v. BARTON

No. 8,519

Court of Appeals of Indiana

March 10, 1915

From Probate Court of Marion County (687); Frank B. Ross, Judge.

Action by Horace H. Fletcher against Daniel Barton. From an order dissolving a temporary restraining order, the plaintiff appeals.

Appeal dismissed.

Barrett & Barrett, for appellant.

Ira M Holmes, for appellee.

OPINION

HOTTEL, C. J.

This is a proceeding brought by appellant against appellee in the Probate Court of Marion County, wherein appellant sought to enjoin appellee from selling appellant's automobile on execution.

So far as the averments of the complaint show, such execution was regular in form and valid on its face. The complaint seems to be based on the theory that the justice, who rendered the judgment on which the execution was issued, acquired no jurisdiction of the defendant and that such judgment appears on its face to be void. The complaint affirmatively shows that the suit in which such judgment was rendered was an action on account for $ 159, filed against appellant before John F. Manning, J. P., by "B. C Huetter and J. A. Huetter, doing business under the firm name and style of Huetter Machine & Tool Company"; that the defendant (appellant here) "appeared to said action and filed his affidavit and motion for change of venue of said cause."

The complaint also sets out the justice's docket entry which included the rendition of the judgment and is as follows:

"State of Indiana, Marion County, SS:

J. A Huetter, B. C. Huetter, partners under style firm name of Huetter Machine and Tool Company. vs. Horace H. Fletcher. Before Criss Gass, J. P. Pike Township, Marion County, Indiana. On change of venue from John F. Manning, J. P., Center Township. Received papers and filed this 12 of November, 1911, set for hearing the 28th day of November, 1911, day and hour having arrived to be heard the defendant three times called came not. The court after hearing part of the evidence rendered judgment against the defendant in the sum of one hundred fifty-nine dollars ($ 159.00) by default and costs taxed at $ 6.65 and accruing costs. Be it therefore adjudged that the plaintiff have judgment against the defendant Horace H. Fletcher in the sum of one hundred fifty-nine dollars ($ 159.00) and costs taxed at 6.65. Criss Gass, J. P."

It appears from these averments of the complaint that the justice rendering such judgment had both jurisdiction of the person of the defendant and the subject-matter of the action. Appellant contends that such judgment entry is void because it fails to show that any summons was issued for the defendant and does not contain the word "recover", or its equivalent. The first contention is without merit because the averments of the complaint above indicated show appellant's appearance to said action and the filing of an affidavit for a change of venue. Louisville, etc., R. Co. v. Hagen (1882), 87 Ind. 30, 32, 33. The failure of the justice to use the word, "recover", would at most be an irregularity in form which would not render the judgment void. Section 1863 Burns 1914, § 1571 R. S. 1881, expressly provides that "no writ or judgment" of a justice "shall be invalid for want of form if it contains the substance." See, also, Fruits v. Elmore (1893), 8 Ind.App. 278, 280, 34 N.E. 829. The effect of appellant's proceeding in this case is to attack collaterally the judgment on which the execution in question issued, and such a proceeding will not lie unless the judgment attacked is absolutely void on its face. Schilling v. Quinn (1912), 178 Ind. 443, 446, 99 N.E. 740, and cases cited; Fruits v. Elmore, supra; Benbow v. Studebaker (1912), 51 Ind.App. 450 456, 99 N.E. 1033; Rhodes-Burford Furn. Co. v. Mattox (1893), 135 Ind. 372, 373, 376, 34 N.E. 326, 35 N.E. 11. We might add that appellant's complaint contains no averments showing a meritorious defense to the judgment on which the execution issued and in such case "a court of equity will not grant relief, even where the judgment is void on its face." Schilling v. Quinn, supra, 447, and cases cited.

We have indicated enough to show that a decision of this case on its merits would require an affirmance of the judgment below. However, the errors assigned by appellant and the record as it comes to us requires a dismissal of the appeal rather than an affirmance of such judgment. The record affecting the question attempted to be presented by the appeal is as follows: The appellant filed his verified complaint and tendered therewith an undertaking and moved the court for a temporary restraining order, whereupon the court approved the bond and after hearing the evidence and being fully advised in the premises found "that an emergency exists for the issuance of a temporary restraining order herein and the plaintiff's motion is sustained," and "ordered adjudged and decreed * * * that the defendant be and hereby * * * is restrained and enjoined from selling or attempting to sell one Oldsmobile taken by him as the property of the plaintiff herein and this order shall be and remain in force until the further order of the court and the further hearing of this cause is set for September 6, 1912, at the court house in Indianapolis, Indiana." An entry of October 21, 1912, being the thirteenth judicial day of the October term, 1912, of said court, omitting caption and formal parts of motion, is as follows: "Comes now the defendant, Daniel Barton and moves the court to dissolve the temporary restraining order heretofore granted against him in this cause, for the reason that the complaint does not state facts sufficient to constitute a cause of action against him. The complaint shows on its face that the plaintiff has an adequate remedy at law." The entry showing the ruling on this motion is as follows:

"Comes now the parties and this cause coming on for hearing on the defendant's motion to dissolve the temporary injunction heretofore granted, this cause is...