Gum-Elastic Roofing Co. v. Mexico Pub. Co.

CourtSupreme Court of Indiana
Citation39 N.E. 443,140 Ind. 158
Decision Date10 January 1895


Appeal from circuit court, Marion county; Edgar A. Brown, Judge.

Action by the Gum-Elastic Roofing Company against the Mexico Publishing Company and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Mr. Moores, for appellant. Mr. Florea, for appellees.


The appellant, who was the plaintiff below, instituted this action against the appellees to vacate a judgment rendered by a justice of the peace, and to enjoin the collection of the same. It is alleged in the complaint that the Mexico Publishing Company, on November 7, 1892, recovered a pretended judgment in proceedings in attachment and garnishment against the plaintiff, and against certain indebtedness due the plaintiff from the Kimberlin Manufacturing Company, before a justice of the peace, which judgment was in and for the sum of $86.70 and costs of such proceeding. And the plaintiff makes said pretended judgment a part of this complaint, and files a duly-certified transcript of said judgment, and of all the proceedings herewith, as a part of this complaint, making such transcript Exhibit A. The plaintiff avers that such pretended judgment was and is null and void for the following reasons: (1) Because the said justice of the peace had no jurisdiction of the subject-matter; (2) because such justice had no jurisdiction of the person of the said Gum-Elastic Roofing Company; (3) because no dated or legal process was ever served upon said Gum-Elastic Roofing Company, and no sufficient ground was shown for publication of notice to said defendant; (4) because the affidavit upon which the proceedings in attachment and garnishment were commenced before the justice of the peace states no ground for an attachment against said roofing company; (5) because the only process under which the said Gum-Elastic Roofing Company was before said justice being publication of notice to such company as a nonresident, and said company not having entered an appearance, and not being in court either by its officers, agent, or attorney, said justice of the peace exceeded his jurisdiction, and rendered judgment against the said corporation for the sum of $86.70 and costs, while the amount stated in the affidavit in attachment filed in said proceedings on behalf of the said Mexico Publishing Company stated that said Mexico Publishing Company ought to recover the sum of $68.60, and gives said sum as the amount sought to be recovered; (6) because said justice of the peace attempted to render a judgment for a larger amount than the sum stated in the affidavit in attachment as due from the said plaintiff herein to said Mexico Publishing Company. Wherefore plaintiff prays that said judgment be vacated and annulled and held for naught, and that the defendants, and each of them, be perpetually enjoined from enforcing, or seeking to enforce, said so-called judgment.” Appellees filed separate demurrers to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action, which were sustained, and appellant excepted. Appellant refused to amend the complaint, and judgment was rendered in favor of the appellees.

Did the court err in sustaining the demurrers to the complaint? This is the only question to be decided. The certified transcript of the judgment and proceedings before the justice of the peace, which were filed with the complaint as an exhibit, did not thereby become a part of the record, and cannot be considered in determining the question of the sufficiency of the complaint. Conwell v. Conwell, 100 Ind. 437;Brooks v. Harris, 41 Ind. 390;Wharton v. Wilson, 60 Ind. 591;Morrison v. Fishel, 64 Ind. 177;Parsons v. Milford, 67 Ind. 489;Lythe v. Lythe, 37 Ind. 281;Wilson v. Vance, 55 Ind. 584;Matheney v. Earl, 75 Ind. 533; Thornton's Ind. Prac. Code, § 362, note 2. When a recovery is sought on a note, mortgage, or other contract in writing, our Code requires that a copy of the same be filed with the pleading; but when the cancellation or legal destruction of such an instrument is demanded, this rule does not apply. Johnson v. Moore, 112 Ind. 91, 13 N. E. 106;Heiman v. Schnek, 40 Ind. 93;Barkley v. Tapp, 87 Ind. 25. Examining the complaint in this case without reference to the transcript, we find that the first, second, third, and fourth reasons given for the judgment of the justice of the peace being void are mere conclusions, and do not help the complaint in any way. Facts, not conclusions, must be averred. Kleyla v. Haskett, 112 Ind. 515, 14 N. E. 387;Guerin v. Kraner, 97 Ind. 533;Kern v. Hazlerigg, 11 Ind. 443;Clark v. Lineberger, 44 Ind. 223;McClamrock v. Flint, 101 Ind. 278. The fifth and sixth specifications present substantially the same questions. It appears from the allegations in the fifth specification that the appellant was a nonresident corporation, and was served by publication of notice. That said corporation did not enter any appearance to said cause, and was not in court...

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