Gilkison v. Darlington

• Decision Date: 13 June 1952
• Docket Number: No. 17844,17844
• Citation: 123 Ind.App. 28,106 N.E.2d 473
• Parties: GILKISON et al. v. DARLINGTON et al.
• Court: Indiana Appellate Court

Page 473

106 N.E.2d 473

123 Ind.App. 28

GILKISON et al. v. DARLINGTON et al.

No. 17844.

Appellate Court of Indiana, in Banc.

June 13, 1952.

Albert H. Gavit, Gary, Buschmann, Kreig, De Vault & Alexander, C. Severin Buschmann, and Paul De Vault, Indianapolis, Leo P. Rieder, South Bend, Matthew E. Welsh, Indianapolis, C. Ballard Harrison, Hammond, Wendell C. Hamacher, Crown Point, for appellants.

John F. Beckman, Jr., City Atty., Hammond, for appellees City of Hammond, Vernon C. Anderson, Mayor, and other city officials.

Owen W. Crumpacker, Hammond, Edward J. Ryan, Valparaiso, for appellee Darlington.

ACHOR, Chief Judge.

This is an action for injunction, filed by appellee, Darlington, as a taxpayer of the City of Hammond, Indiana, in his own behalf and on behalf of the other taxpayers of the City of Hammond. The appellants are parties holding judgments against the City of Hammond, based upon the City's liability by reason of its erroneous payment of funds received by it in payment of Barrett Law assessments, upon which bonds had been issued. Precedent for such liability was determined in the case of Read v. Beczkiewicz, Treasurer, 1939, 215 Ind. 365, 18 N.E.2d 789, 19 N.E.2d 465.

It is alleged that said judgments, totaling 124 in number, were without merit and were procured by fraud upon the trial courts, in which fraud the attorneys for defendant judgment holders were alleged to have colluded with the defendant officials of the City of Hammond, whereby the taxpayers of the City of Hammond had been damaged.

Those parts of the prayer to the complaint, which are material to a determination of the question presented here, are (1) that said judgments be declared void and (2) that a permanent injunction be granted, enjoining any further proceedings on the judgments; (3) enjoining further prosecution of any of the causes of action upon which the judgments were rendered, and (4) 'all further, just and equitable relief in the premises.'

Upon the court's findings of fact and conclusions of law, judgment was rendered for appellee, as prayed.

Numerous problems are presented, which required careful and extensive consideration by this court. The first major question is presented by the motion to dismiss. The first asserted grounds for dismissal is that the transcript and assignment of errors was not filed within 90 days after the final adjudication as to all of the consolidated causes of action and without a proper extension of time having been granted, contrary to Rule 2-2 of the Supreme Court. We do not so construe the facts in this case.

Under the issues of the case, each judgment was subjected to separate consideration and adjudication under the pleadings and evidence before the court. Therefore, the overruling of the motion for new trial, as to those judgment-defendants, constituted a final adjudication as to said judgment-defendants. See Gross Income Tax Div. v. National Bank, 1948, 226 Ind. 293, 79 N.E.2d 651; Walton v. Walton's Guardianship, 1950, 120 Ind.App. 656, 95 N.E.2d 301.

As a second ground for dismissal, it is urged, in addition to the above time requirement, that appellants have failed to comply with Rule 2-5 of the Supreme Court. It is contended that, on the face of this court's record, the appellants have only filed part of the record in transcript form and have filed the exhibits consisting of thousands of miscellaneous, separate papers of all descriptions by merely packing them in 11 cardboard cartons; that this failure deprives this court of jurisdiction.

Whether the bill of exceptions containing the evidence is in proper form or properly certified so that it can be considered, is a matter which does not go to the jurisdiction of this court. A failure in this respect is not a ground for dismissal of the appeal, but may be ground for affirmance of the judgment where all questions depend upon the evidence. Hunter v. Stump, 1948, 118 Ind.App. 84, 79 N.E.2d 696; Montgomery Ward & Co. v. Thalman, 1950, 120 Ind.App. 473, 88 N.E.2d 53, 89 N.E.2d 294, 93 N.E.2d 352; Barnard v. Kruzan, 1943, 221 Ind. 208, 46 N.E.2d 238.

The exhibits were material to the case only as part of the evidence and, because of the ruling of this court regarding the sufficiency of the recital of the evidence in the briefs, it is not material to a determination of this cause that we give further consideration to the form of the transcript, with reference to these exhibits.

A further issue has been raised as to those exhibits, part of which were original papers in the respective cases tried and reduced to judgment in the courts below. It has been vigorously asserted that this court was in error when, in a previous proceeding, it ordered that said original papers be made a part of the bill of exceptions in this cause. It is contended that the bill of exceptions is the property of the appellant and that, by our order, this court erroneously wrested from the trial courts their permanent public records and delivered their possession and control into the soiled hands of the appellants. The law upon this point has been grossly misstated. The bill of exceptions, although ordered by the appellants and prepared at their expense, is not their property. It is the record of the courts, of which appellants' counsel is an officer. Although the bill of exceptions is entrusted to the appellants for the purpose of filing the same with the Clerk of this court, it remains the record of the courts, subject only to such disposition as the statute and rules direct.

It is further contended as cause for dismissal that the judgments for attorneys fees, held by both Huebner and Gardner in connection with judgments taken by them in behalf of their former clients, had been assigned to attorney Gavit before the final adjudication of the cause and before the appeal to this court; that, therefore, the appeal was not filed in behalf and in the name of the real party in interest and that the appeal should be dismissed for that cause also. In regard to this latter contention, the statute and supporting cases clearly hold that an assignment of an interest after suit does not necessitate the substitution of the name of the assignee as the real party in interest. § 2-227, Burns' 1946 Repl., and cases cited thereunder.

The second major issue presented is whether or not the court had authority to attack the validity of the judgments and to grant injunctive relief therefrom. Upon this issue, it is contended by appellants first that, by the manner in which this action was filed it was, at most, an attempt to collaterally attack the several judgments for alleged fraud. We proceed to determine whether or not these actions were filed as a direct or collateral attack upon the judgments sought to be declared void and enjoined. These actions in the Porter Circuit Court originated by the filing of two companion complaints almost identical in terms,--one in Lake Superior Court Room 1, attacking those particular judgments which had been rendered in that court, and the other in Lake Superior Court Room 5, attacking those particular judgments which were rendered in that court, together with five judgments which were rendered in Lake Superior Court Room 2. These cases were transferred to the Porter Circuit Court pursuant to a motion for change of venue and were consolidated for trial.

It is contended that in order to constitute a direct attack, the action must be filed in the original cause itself. However, it is well established under recent decisions that an action which seeks to set aside a judgment for fraud in its procurement should be filed as a separate and independent action in the same court. State ex rel. Roth v. Dickey, Judge, 1947, 225 Ind. 279, 73 N.E.2d 765.

It is true that the relief sought in the above case was merely to set the judgment aside, whereas this is an action to nullify and enjoin the judgments and causes of action in controversy. However, both proceedings were direct attacks in equity upon judgments procured by fraud, and were subject to the same jurisdictional requirements. As stated by the following text: 'As a general rule, equitable relief against a judgment may be sought only in a court having the power and authority to consider such an application, and ordinarily, if the court which rendered the judgment has equitable powers, it is proper to bring suit in that court to enjoin or set aside the judgment.' (Our italics.) 49 C.J.S., Judgments, § 382, p. 759. We conclude, therefore, that the action was properly filed as a direct attack upon the judgments in issue. The grounds of the attack being extrinsic fraud upon the court in their procurement.

It is further contended, however, that, even though the actions attacking the original judgments were properly filed as a direct attack upon the actions in the Lake Superior Court, that court alone had jurisdiction to hear and determine the causes of action attacking the judgments in that court and that the Porter Circuit Court had no jurisdiction over the subject matter or the parties; that it was error on the part of the Superior Court of Lake County to sustain the motions for change of venue from the county, as a result of which the causes were certified to the Porter Circuit Court.

It is well settled that a court ordinarily has no authority to enjoin the enforcement of judgments of another court of equal jurisdiction. Coleman v. Callon, 1916, 184 Ind. 204, 206, 110 N.E. 979; Smith v. Largura, 1922, 79 Ind.App. 546, 134 N.E. 493; Hofmann v. State, 1935, 207 Ind. 695, 194 N.E. 331; Morgan v. Amick, Sheriff, 1936, 102 Ind.App. 603, 4 N.E.2d 51. It is contended that the Porter Circuit Court, being a court of equal jurisdiction within the meaning of the rule, had no authority to enjoin the enforcement of the judgments of the Lake Superior Court.

The right to change of venue is entirely statutory. The statute applicable to the case before us, is as follows: 'The court, in term, or the...