Johnson v. Hosford
| Decision Date | 17 February 1887 |
| Docket Number | 12,424 |
| Citation | 10 N.E. 407,110 Ind. 572 |
| Parties | Johnson et al. v. Hosford et al |
| Court | Indiana Supreme Court |
J. C Nelson, Q. A. Myers and C. E. Taber, for appellants.
J. G Williams, S. C. Davis and S. B. Davis, for appellees.
This suit was brought by the appellants to obtain a decree directing that they be entitled to redeem from a sale made upon a mortgage held by the Atlas Insurance Company, and it is in this court for the second time. Hosford v. Johnson, 74 Ind. 479.
There were pleadings in the record, upon which the judgment rendered on the special finding may properly stand. The answer was in the nature of a counter-claim, and entitled the appellees to affirmative relief, and we can not reverse the judgment for the reason that the court wrongly described the pleading in the entry of the decree. If there is a pleading entitling the party to the judgment awarded him, his adversary can not be prejudiced by an error in describing the pleading on which the judgment is declared by the court to be founded. Where there is a special finding, stating facts entitling a party to the relief granted him, and pleadings upon which the judgment may be supported, it will be upheld although the court may have misdescribed the pleading in the entry of judgment. The material inquiry in such a case is, whether there are pleadings upon which the judgment can legally rest, and not whether in giving a description of the pleading the court erred.
If the pleadings will support the judgment, it can not be said to be outside of the issues, although in the recital of the court there may be an error. This court will examine the pleadings, and upon them determine what is within the issues, and it will not yield to a mere recital in the decree. It is quite clear that the court could not make a judgment stand within the issues by a mere recital, if, upon an inspection of the pleadings, it appeared to be outside of them; and the converse must be true, that if the finding and judgment are within the issues, the mistake of the court in stating in the recital in the decree, that the judgment is upon a pleading not in the record, can not take the finding and judgment outside of the issues.
The sufficiency of the answer or counter-claim was determined when the case was here before, and it is a familiar rule that such a decision is the law of the case, governing it throughout all of its subsequent stages. The amendments to the pleading did not change its character so as to prevent the application of this general rule.
We think counsel for the appellants are mistaken in treating the cross complaint which they attack as in the record. We do not understand that it is in the record, but if it were, no harm resulted to appellants in allowing it a place in the record, for the issues were tried upon another pleading, and upon that the special finding rests.
It has often been decided that it is not the name given the pleading that determines its character, but the facts stated in it, and the facts stated in what is denominated the answer, are sufficient to entitle the appellees to affirmative relief, and to constitute it a counter-claim under the statute. Standley v. Northwestern M. L. Ins. Co., 95 Ind. 254.
The appellees' counsel are right in criticizing the use of the phrase "motion for a venire de novo," as applied to the special finding of a court; but the phrase is a convenient one, commendable on account of its brevity, its place not easily supplied, and its employment justified by general use, so that, while its employment is not defensible on philological grounds, still it has a place in our legal terminology, and should not now be cast aside. Its meaning is well known, and its application is often made to the findings of courts as well as to the verdicts of juries. We do not, however, think that there are any defects in the special finding that a motion for a venire de novo will reach, for it is not uncertain or ambiguous; on the contrary the facts are fully and clearly stated.
The important questions in the case arise on the exception to the conclusions of law stated in the special finding. The facts stated by the court are substantially these: On the 13th day of March, 1874, Clark Tuttle and wife executed to the Atlas Insurance Company a mortgage on sixty acres of land, to secure the sum of five thousand dollars. The mortgagors agreed to pay five per cent. attorney's fees in case suit...
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