Frankel v. Garrard

Decision Date11 March 1903
Docket Number20,009
PartiesFrankel v. Garrard et al
CourtIndiana Supreme Court

From Delaware Circuit Court; J. M. Smith, Special Judge.

Suit by William L. Garrard and another against Jacob Frankel. From a judgment for plaintiffs, defendant appeals. Transferred from Appellate Court, under § 1337u Burns 1901.


J. F Meredith, for appellant.

J. W Ryan, W. A. Thompson and R. C. Griffith, for appellees.


Dowling, J.

Suit by the appellees, Garrard and Ault, in the Delaware Circuit Court, to enjoin the collection of a judgment rendered by a justice of the peace in favor of one Smith, and against the appellee Ault. The action was originally brought by Garrard alone, but subsequently, with the leave of the court, Ault was joined as a plaintiff. A motion was made by the appellant to strike the name of Ault from the complaint, for the reason that he was "made a party plaintiff without a proper showing, and without any order of court." A demurrer to the complaint stated as grounds therefor: (1) The want of sufficient facts to constitute a cause of action; (2) a defect of parties plaintiff, in that Ault had been improperly added as a plaintiff; (3) a misjoinder of parties plaintiff, in "that Ault had been joined as a plaintiff without an order or leave of the court." The court denied the motion to strike out the name of Ault, and overruled appellant's demurrer to the complaint. Appellant then filed an answer in two paragraphs, to the second of which a demurrer was sustained. These rulings are assigned for error.

It appears from the complaint that Smith brought suit against Ault before a justice upon two promissory notes, each for the sum of $ 50, payable to Smith; that, when the action was commenced, Ault was not, and for three months before that had not been, a resident of Delaware county, or of the State of Indiana, but that he then was, and for three months had been, a resident of the state of Pennsylvania; that these facts were known to the plaintiff Smith, and to the constable to whom the writ of summons for Ault had been issued; that Smith, with the intent to cheat and defraud Ault, wrongfully caused and procured the said constable to make a return upon the said writ that he had served the same upon Ault by leaving a copy thereof at his last and usual place of residence in said county; that upon the return day of said summons the justice of the peace proceeded to hear and determine said cause in the absence of Ault and without his knowledge, and, upon such hearing, rendered a judgment on said notes against said Ault for the amount of the principal and interest thereof, with attorney's fees; that at the request of Smith the justice prepared a transcript of the said judgment and proceedings, and filed the same in the office of the clerk of the Delaware Circuit Court; that, at the time of the filing of the said transcript, Ault was the owner of lot three, in block four in Goshorn and Lupton's subdivision of the Walling tract, in the city of Muncie, in said Delaware county, and that, upon the filing of the said transcript in said clerk's office, said judgment became an apparent lien on said real estate; that afterwards the said Ault sold and conveyed the said lot to the said Garrard by deed of general warranty; that Smith afterwards sold and assigned said judgment to the appellant Frankel, who caused an execution to be issued to the sheriff of said county, and was about to enforce the collection of said judgment by levy upon and sale of the said real estate. The relief demanded was that the judgment be declared void, and that Smith, Frankel, and the sheriff holding the execution be enjoined from enforcing the said judgment against Garrard and Ault, or against either of them.

The sole ground of the motion to strike Ault's name from the complaint was that he was made a party plaintiff without a proper showing or order of court. The court did not err in overruling this motion. The record expressly recites that Garrard, the plaintiff below, asked and obtained the leave of the court to make Ault a party. It appears, also, that the amendment by which Ault was joined as a party plaintiff was made before any answer was filed by the defendants. An amendment at that time could be made as of course, and without leave. § 397 Burns 1901, § 394 R. S. 1881 and Horner 1901. Besides, the statute, in so many words, authorizes the court at any time, in its discretion, to direct the name of any party to be added; and such order might have been made by the court without request, and in the absence of any formal showing of the reasons therefor. § 399 Burns 1901, § 396 R. S. 1881 and Horner 1901.

The question of the sufficiency of the facts stated in the complaint as a cause of action, and also of the right of the plaintiffs to sue jointly, was presented by the first ground of the demurrer. Pence v. Aughe, 101 Ind. 317; Sinker v. Floyd, 104 Ind. 291, 4 N.E. 10; Louisville, etc., R. Co. v. Lohges, 6 Ind.App. 288, 33 N.E. 449.

The separate demurrer of the appellant tested the sufficiency of the complaint as to him, although it alleged generally that the pleading did not state facts sufficient to constitute a cause of action, without the words "as to him." Such a demurrer must be understood as assailing the sufficiency of the complaint, on behalf of the demurring party, in the same manner, and with the same effect as if he were the sole defendant.

Counsel for appellant earnestly insist that even if the complaint was sufficient as to Ault, the person against whom the judgment sought to be enjoined was rendered, it was not good as to Garrard, the purchaser of the real estate affected by the lien of the judgment, and the case of Hogg v. Link, 90 Ind. 346, is referred to in support of this position. It is further objected that if the complaint is not good as to either one of the plaintiffs who join in it the pleading is bad as to both. The latter proposition is true, and is sustained by numerous decisions of this court. Brown v. Critchell, 110 Ind. 31, 7 N.E. 888; McIntosh v. Zaring, 150 Ind. 301, 49 N.E. 164; Brunson v. Henry, 140 Ind. 455, 39 N.E. 256.

We are of the opinion, however, that the complaint was sufficient as to each of the plaintiffs. The fact that Ault, the judgment defendant, was a party to the action to set aside and enjoin the collection of the judgment, distinguishes the case from Hogg v. Link, supra. It has been held in this State that the grantor of real estate with covenants has such an interest in restraining a sale of land under a judgment against a former owner, alleged to have been paid, as to make him a proper party to apply for an injunction. McCulloch v. Hollingsworth, 27 Ind. 115; City of Hartford v. Chipman, 21 Conn. 488; Redwine v. Brown, 10 Ga. 311; High, Injunctions (3d ed.), § 145. And in California, the court decided that the purchaser of lands could restrain their sale under a judgment obtained by fraud against his grantor upon showing affirmatively that he would be injured thereby. Marriner v. Smith, 27 Cal. 649.

The right of Ault, the original judgment defendant, to maintain an action to cancel the judgment, is not questioned. By his suit to annul it he unmistakably indicated that he did not acquiesce in the alleged injury, or waive his legal objections thereto. His complaint disclosed facts which, if true, rendered it void for fraud. Pending Ault's suit to vacate and annul the judgment, Garrard his grantee, had the right, at least,...

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