Hatfield v. Cummings

• Decision Date: 12 May 1899
• Citation: 53 N.E. 761,152 Ind. 537
• Parties: HATFIELD et al. v. CUMMINGS.
• Court: Indiana Supreme Court

152 Ind. 537

53 N.E. 761

HATFIELD et al.

v.CUMMINGS.

Supreme Court of Indiana.

May 12, 1899.

Appeal from circuit court, Wabash county; H. B. Shively, Judge.

Action by Luther Cummings, as receiver of the Lime City Building, Loan & Savings Association, against James M. Hatfield and others. There was a decree for plaintiff, and defendants appeal. Affirmed.

J. T. Alexander, Kenner & Lesh, and J. M. Hatfield, for appellants. Whitlock & Cook and Slick & Hunter, for appellee.

DOWLING, J.

This is the second time this case has come before this court on appeal. 140 Ind. 547, 40 N. E. 53. The suit was brought by the appellee, as receiver, to enforce the collection of a note executed by James M. Hatfield, one of the appellants, and to foreclose two mortgages given by Hatfield and his wife to secure the payment of the said note and another debt. On the former appeal the judgment of the trial court was reversed for error in sustaining a demurrer to the third paragraph of the answer of James M. Hatfield. Afterwards, in the Wabash circuit court, to which the case had been sent on a change of venue, the issues were made up; and upon the trial of the cause, and a special finding therein, judgment was rendered in favor of appellee.

Errors are assigned as follows: (1) The complaint does not state facts sufficient to constitute a cause of action. (2) The court erred in overruling appellants' motion in arrest of judgment. (3) The court erred in sustaining appellee's motion to strike out part of appellants' motion in arrest of judgment. (4) The court erred in overruling the demurrer of James M. and Thursy J. Hatfield to the second paragraph of the reply to the joint answer of the Hatfields and the Huntington City Building & Loan Association. (5) The court erred in its conclusions of law. (6) The court erred in overruling appellants' motion for a new trial.

Upon the first error assigned, we are asked to re-examine the complaint. On the former appeal this court held the complaint sufficient, and that ruling is conclusive upon all questions relating to that pleading. Hatfield v. Cummings, 140 Ind. 547, 40 N. E. 53. The rule is thus stated in Elliott, App. Proc. § 578: “It is a firmly-settled principle that the decisions of the appellate tribunal constitute the law of the case upon all the points in judgment, no matter at what stage of the proceedings they arise, or in what mode they are presented. This rule is not one springing from the doctrine of stare decisis, but it is one founded upon the same principle on which rests the doctrine of res adjudicata. Questions before the court for decision, and by the court decided as essential to a final judgment, are conclusively adjudicated. The law as declared cannot be changed upon a second or subsequent appeal.” See, also, Board v. Bonebrake, 146 Ind. 311, 45 N. E. 470;James v. Railway Co., 148 Ind. 615, 48 N. E. 222;Supply Co. v. Riter, 146 Ind. 521, 45 N. E. 697.

The motion in arrest of judgment was not made until after the motion for a new trial, but it is next in order in the assignment of errors. The sole ground of the motion was the statement of the appellant James M. Hatfield, verified by his affidavit, that the complaint had been changed in a material part, without the leave of the court, after the judgment in this cause was reversed by the supreme court. It was not shown when such change was made, by whom it was made, or at what time the alteration was discovered. For all that appears, appellants knew that the amendment was made, if there was such an amendment, before they went to trial. The motion was destitute of merit, and was properly overruled. For the same reasons the court was fully justified in striking out the affidavit of Hatfield filed in support of the motion.

Appellants also contend that the second paragraph of the reply to the joint answer of the Hatfields and the Huntington City Building, Loan & Savings Association was not sufficient to avoid said answer, and that the demurrer thereto should have been overruled. This paragraph of the reply sets out in detail the bringing of the suit by one Harvey C. Black for the appointment of a receiver of the Lime City Building, Loan & Savings Association, and the subsequent proceedings therein, including the appointment of a receiver, and the entering of a judgment authorizing said receiver to bring suits to collect all moneys due to said association, and to perform various other duties. It also avers that at the time of these proceedings James M. Hatfield and Thursy J. Hatfield were stockholders and members of the said association, and that James M. Hatfield was a party to the said suit, and set up the same matters therein by way of defense to the same as are set up by him and his co-defendants in the present action. The reply contains many other allegations concerning the suit in which the receiver was appointed, but those mentioned here are sufficient to indicate its character and scope. In our opinion, the second paragraph of the reply was good. The Hatfields, as members and stockholders of the Lime City Building, Loan & Savings Association, were bound by the judgment of the court appointing a receiver for that...