Hogan v. Robinson

• Decision Date: 12 March 1884
• Docket Number: 11,106
• Citation: 94 Ind. 138
• Parties: Hogan et al. v. Robinson
• Court: Indiana Supreme Court

94 Ind. 138

Hogan et al. v. Robinson

No. 11,106

Supreme Court of Indiana

March 12, 1884

From the Clark Circuit Court.

J. K Marsh and D. C. Anthony, for appellants.

J. H Stotsenburg and M. C. Hester, for appellee.

OPINION

Colerick C.

This action was brought by the appellee and others against the appellants, to set aside, as fraudulent, certain deeds of conveyance. The complaint, in substance, averred that the appellant Harrison Hogan was, on the 14th day of October, 1875, the owner of certain real estate, describing it, and being indebted to the appellee in the sum of $ 100, and to other persons in sums mentioned, did, on said day, for the purpose of hindering, delaying and defrauding his creditors, execute, with his wife Mary Hogan, one of the appellants, a deed of conveyance for said real estate to the appellant Marsh, who afterwards, on the 20th day of October, 1875, for the purpose of aiding said Harrison Hogan in accomplishing his said fraudulent purpose, and at his instance and request, conveyed said real estate to said Mary Hogan; that although said deeds purported to be made in consideration of the sum of $ 6,000, they were, in fact, wholly voluntary, and made without any valuable consideration, and that at the time of their execution the grantees had full knowledge of the fraudulent intent and purpose of Harrison Hogan; that said Hogan, at the time of the execution of the deed to Marsh, "had no other property subject to execution out of which his then existing indebtedness could be made, nor has he since acquired, nor has he now, such other property, subject to execution, out of which his said indebtedness can be made;" that on the 19th day of April, 1880, a judgment was rendered against him in favor of the appellee in the Clark Circuit Court for $ 100, "due said Robinson as aforesaid," and that other judgments, naming the parties in whose favor they existed and the dates and amounts thereof, were rendered against him, all of which judgments were in full force and unpaid. Wherefore the plaintiffs prayed that said deeds be set aside as fraudulent, and said real estate sold to pay said judgments in the order of their priority, and other relief. To this complaint the appellants filed an answer of general denial. The case was tried by a jury, and resulted in a verdict in favor of the appellee. A motion for a new trial was made and overruled, and from the judgment which was rendered on the verdict the appellants appealed, and assign as errors for its reversal:

1. That the complaint does not state facts sufficient to constitute a cause of action against them, or either of them.

2. That the court erred in overruling the motion for a new trial.

Before considering the questions presented by the appellants it is necessary to dispose of a motion which has been interposed by the appellee to dismiss the appeal, for the reason that David F. McGill and Thomas G. Thuman, who united with the appellee in bringing the action, were not made parties to the appeal, and have not been notified thereof. The record shows that Chapin Hall, Charles Eddy, David F. McGill and Thomas G. Thuman joined with the appellee in commencing this action, and also shows that afterwards the action was dismissed as to Hall and Eddy, on their own motion. McGill and Thuman introduced no evidence on the trial, and for some cause, not explained in the record, abandoned the prosecution of the action, although no formal entry of dismissal as to them was made. During and after the trial the appellee was treated as the sole plaintiff in the action. The judgment against the appellants was rendered in favor of the appellee alone. McGill and Thuman were not parties to the judgment, and, therefore, are not necessary parties to the appeal, which is from a judgment that does not, and can not, affect them in any possible manner. Hammon v. Sexton, 69 Ind. 37; Easter v. Severin, 78 Ind. 540. The case of Hunderlock v. Dundee Mortgage, etc., Co., 88 Ind. 139, cited by the appellee in support of his motion, is in harmony with the cases above cited. It holds, as in the cases cited, that all the parties to, and affected by, the judgment must be made parties to the appeal. The word "parties," as used in the statute relating to appeals to this court, is to be construed as meaning parties to the judgment, and not merely parties to the action. The appellee's motion to dismiss the appeal is overruled.

No demurrer to the complaint was filed in the court below, nor was a motion in arrest of judgment made. The sufficiency of the complaint is questioned for the first time in this court. The objections now presented to it by the appellants are: First. That it appears on the face of the complaint that the cause of action therein set forth was barred at the time of the commencement of the suit; Second. That the complaint does not aver that Harrison Hogan was insolvent at the time of the execution of the deed by Marsh to Mary Hogan, nor allege that he was at that time indebted to any person.

The question of the statute of limitations may be raised by demurrer, where the complaint shows, on its face, that the action is commenced after the time limited, and that none of the exceptions provided in the statute in that class of cases exist. See Works Pr., section 306, and the decisions of this court there cited.

This action was commenced on the 16th day of March, 1882, being more than six years after the execution of the deeds of the conveyance, for the setting aside of which, as fraudulent, the action was brought. The statute of limitations provides that actions "for relief against frauds" shall be commenced within six years after the cause of action has accrued, and not afterwards. R. S. 1881, section 292. But many exceptions are made in the statute, the existence of any one of which will take the case out of its operation. In Potter v. Smith, 36 Ind. 231, it was said that "The statute contains various exceptions, as the disability of the plaintiff, non-residence of the defendant, etc.; and where such is the case, it is the settled rule that the statute, if relied upon, must be pleaded, unless, indeed, the complaint shows affirmatively that the plaintiff is barred, notwithstanding the exceptions. The reason is, that the case may be within some of the exceptions, and the plaintiff is not bound to anticipate the defence of the statute and show his case to be within the exception without knowing that such defence will be made. Upon the statute being pleaded, he may reply the exception." See, to the same effect, Harlen v. Watson, 63 Ind. 143; McCallam v. Pleasants, 67 Ind. 542; Harper v. Terry, 70 Ind. 264; Dunn v. Tousey, 80 Ind. 288; Wilson v. Ensworth, 85 Ind. 399; Cravens v. Duncan, 55 Ind. 347; Kent v. Parks, 67 Ind. 53; Lucas v. Labertue, 88 Ind. 277.

While the better practice is to require the statute to be pleaded in all cases, still the exception, to which we have referred under our practice exists, but, in order to make it available, it must clearly and explicitly appear on the face of the complaint, that none of the exceptions named in the statute exist. The non-existence of all the exceptions does not appear on the face of the complaint in this action; the exclusion or absence of any of them only appears inferentially. We think that the question is not...