Gilchrist v. Cotton
| Decision Date | 02 July 1925 |
| Docket Number | No. 11940.,11940. |
| Citation | 83 Ind.App. 415,148 N.E. 435 |
| Parties | GILCHRIST v. COTTON. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Decatur County; Jno. W. Craig, Judge.
Petition by the Union Trust Company, as administrator of the estate of Minerva J. Gilchrist, to sell real estate to pay debts of estate, in which Mary J. Cotton filed a petition against her codefendant, Frank H. Gilchrist. From a judgment against him, and in her favor, Frank H. Gilchrist appeals. Affirmed.
Myron C. Jenkins, of Greensburg, for appellant.
Edgar E. Hite and John F. Goddard, both of Greensburg, for appellee.
The Union Trust Company, as administrator of the estate of Minerva J. Gilchrist, filed a petition for the sale of real estate to pay debts of the estate. Appellant, Frank H. Gilchrist, a son of the decedent, was named as one of the defendants. Appellee, being the holder of a judgment, was named as a defendant, and filed an answer alleging that a number of years prior thereto she had been granted a divorce from appellant, at which time she recovered a judgment against him for alimony in the sum of $3,100, and that in June, 1922, she obtained a judgment against appellant in the sum of $5,000, based upon said prior judgment. That said last judgment was a lien on the interest of appellant in the real estate described in the petition, and asking that upon sale of such real estate the administrator be directed to pay her the amount of her judgment out of the distributive share of appellant, arising upon the sale of said real estate. Appellant filed an answer to this petition of appellee, in which he alleged that his mother died November 18, 1922, the owner of the real estate; that on October 13, 1922, he was duly adjudged a bankrupt; that on February 5, 1923, he received a discharge in such bankruptcy proceedings as to all provable debts, and asking that appellee be decreed not to have a lien upon the proceeds coming to him from the sale of said real estate.
On February 16, 1923, the petition of the administrator to sell the real estate was submitted to the court for trial, and the court ordered the real estate sold, and that the controversy between appellant and appellee “be later adjudged and adjusted as between them, and if it is found that the defendant, Mary J. Cotton, has a lien upon the interest of said defendant, Frank H. Gilchrist, the same shall attach to the fund arising from said sale, belonging to the defendant, the said Frank H. Gilchrist.”
The real estate was sold by the administrator, and thereafter the petition of appellee to have her judgment attach to the proceeds belonging to appellant was submitted to the court for trial, and resulted in a finding and judgment that appellee had a lien in the sum of $5,000 against the interest of appellant in the hands of the administrator, and that the administrator should pay said sum of $5,000 out of appellant's interest to appellee.
Appellant filed a motion for a new trial, specifying as grounds therefor, that the court erred in admitting in evidence, over his objection, the complaint, answer, and judgment in the action wherein appellee was granted a divorce from appellant, and in which she was given a decree for alimony, and that the decision of the court is not sustained by sufficient evidence, and is contrary to law. This motion being overruled, appellant prosecutes a vacation appeal, without making the administrator of the estate of Mrs. Gilchrist a party. Appellee has filed a motion to dismiss the appeal because of the failure to make the administrator a party.
[1] The judgment which is the foundation of this appeal affected no one other than appellant and appellee. The administrator is in no wise affected by that judgment, and has no interest in its affirmance or reversal. Hughes v. Yates (Ind. App.) 144 N. E. 862, cited by appellee, is not controlling. In that case exceptions had been filed, and sustained, to the report of a commissioner appointed to sell real estate in an action for partition. The exceptions had been sustained, and an amended report had been filed in accordance with the order of the court, showing that he had distributed the money as directed, except the sums awarded to the appellant and appellee therein, which he had paid to the clerk for the use of the parties. The judgment in that case was one not only commanding the distribution of the funds in a certain way, but it also was a judgment approving the amended report and discharging the commissioner, and involved an issue in which the commissioner was a party. In the instant case neither the administrator individually, nor as administrator, was affected by the issue presented by the pleadings of appellant and appellee. Its rights are not affected by the judgment, and, as we view it, was not a necessary party to this appeal. The motion to dismiss is overruled.
[2] The only error assigned relates to the action of the court in overruling the motion for a new trial. Appellee insists that no question is presented as to the action of the court in overruling this motion, for the reason that there is no statement in the bill of exceptions, or in the certificate of the judge, to the effect that the evidence set out in the bill of exceptions is all of the evidence introduced on the trial. This contention is not well taken. The bill of exceptions sets out certain evidence introduced by appellee and by appellant, which is followed by the statement in the body of the bill: “And this was all the evidence given in the cause, excepting the following specifications agreed upon in open court, to wit.” This is followed by an agreement as to certain facts, and this agreement is followed by the certificate signed by the judge. We hold that the bill of exceptions shows that it contains all of the evidence given on the trial of the cause.
[3] The only questions attempted to be presented by appellant relate to the admission of the evidence mentioned in the motion for a new trial. The other specifications in the motion are waived because of the failure of appellant to state any reason, point, or proposition in support of them.
[4] Appellee contends that no question is presented as to the admission of the evidence because of appellant's failure to state in his brief what objections were made to the admission of the evidence. This contention might well be sustained, as it is sustained by a multitude of decisions of this and the Supreme Court. But in view of the fact that the cause must be affirmed on the merits we will overlook the defect in appellant's briefs. Attention, however, is called to Gwinn v. Hobbs, 72 Ind. App. 439, 118 N. E. 155;McCoun v. Shipman, 75 Ind. App. 212, 128 N. E. 683;Slifer v. Williard, 78 Ind. App. 88, 131 N. E. 87, 132 N. E. 321;Totten v. American R. Express Co., 78 Ind. App. 202, 135 N. E. 152;Fidelity, etc., Co. v. Blount Plow Works, 78 Ind. App. 529, 136 N. E. 559.
Appellee obtained a divorce from appellant in the Decatur circuit court in 1911, at which time she was decreed alimony in the sum of $3,100. In 1922, she filed another complaint against appellant in the same court, alleging that she had theretofore recovered a judgment in that court against appellant in the sum of $3,100, which judgment, with interest, was due and wholly unpaid; that when said judgment was renderedher name was Mary J. Gilchrist, and she was the wife of appellant, but that in said judgment the court restored to her her maiden name, Mary J. Cotton, in which name she brought the second action, and asking for judgment in the sum of $5,000. Such proceedings were had therein as resulted in a judgment being rendered against appellant in June, 1922, for $5,000. Appellee introduced the complaint, summons, answer, and judgment in her action for divorce in evidence.
[5] Appellant insists that the former judgment was merged in the last judgment; that there is nothing on the face of the last judgment or in the pleadings on which it is founded disclosing its nature, and that it was reversible error for the court to allow the complaint and judgment in the action for divorce to be introduced in evidence over his objections. An examination of the record discloses that the only objection made to the introduction of this evidence was that the former judgment was merged in the last judgment, and objections not made in the trial court will not be considered on appeal.
[6] It is well settled in this state that, when a judgment is rendered on a former judgment, the first judgment is merged in the last judgment, and that no further action can be taken on the first judgment to enforce its collection by execution, suit, or otherwise. Gould v. Hayden, 63 Ind. 443. And it has been held that the merger of a debt as a cause of action does not deprive the creditor of his right to make available a security held for the debt. The fact that the holder of a note secured by a mortgage sues on the note and takes a personal judgment against the maker does not destroy the debt for which the note was given, so as to prevent the holder from thereafter foreclosing the mortgage. Muncie National Bank v. Brown, 112 Ind. 474, 14 N. E. 358.
In Rawley v. Hooker, 21 Ind. 144, judgment had been recovered in 1845 on certain promissory notes dated in 1840. The judgment gave no directions as to the manner of collection in reference to the appraisement laws then in existence, and which had been enacted after the execution of the notes. An execution was issued on the judgment, and certain land sold without appraisement. The contention there was that the purchaser of the land at such sale could not go behind the judgment and show that the judgment was one on which a sale without appraisement was authorized; that the notes were merged in the judgment, and, since the judgment did not direct the collection without appraisement, the sale should have been made in accordance with the laws in force at the time of its rendition. In denying this...
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