McArthur v. Leffler
| Decision Date | 25 January 1887 |
| Citation | 110 Ind. 526,10 N.E. 81 |
| Parties | McArthur v. Leffler. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Pulaski county.
Petition to review a judgment. On demurrer.Geo. A. Murphy and A. Q. Gould, for appellant. F. Church, for appellee.
In this case the only error assigned by appellant, the plaintiff below, is the sustaining of appellee's demurrer to his complaint. Appellant's complaint is in the nature of a bill in equity to obtain the review of a personal judgment against him by the court below, in favor of appellee, for manifest errors, as alleged, appearing in the record. In his complaint appellant alleged that on the first day of October, 1884, appellee, Leffler, filed in the clerk's office of the Starke circuit court his complaint against appellant, McArthur, wherein he demanded that a certain mortgage upon real estate in Starke county, Indiana, and the promissory notes secured thereby, described in said complaint, be canceled and held for naught; that on the same day appellee filed with his complaint an affidavit of the non-residence of appellant, and for publication of notice; that on the same day a summons was issued on such complaint to the sheriff of Starke county, and was by him duly returned, indorsed “not found,” as the said Charles H. McArthur was not found in his bailiwick; that afterwards, on the fourteenth day of January, 1885, being the ninth judicial day of the January term, 1885, of the Starke circuit court, appellant, then and since a non-resident of this state, appeared by Murphy & Gould, his attorneys, and filed a demurrer to appellee's complaint, which demurrer was overruled by the court, and appellant's attorneys at the time excepted; that on the day last named appellant's attorneys moved the court upon affidavit for a change of venue from Starke county, which motion was sustained, and the venue of the cause was changed to Pulaski county, and such change was duly perfected; that afterwards, on the seventh day of September, 1885, being the first judicial day of the September term, 1885, of the Pulaski circuit court, Messrs. Murphy & Gould, the only attorneys for appellant in said cause, withdrew their appearance therein for the appellant, by leave and order of such court, which was evidenced by an entry in the proper order-book of such court, and signed by the judge, in the words and figures following, to-wit:
“ Conrad Leffler v. Charles H. McArthur.
Come now Murphy & Gould, attorneys for defendant, and ask leave of court to withdraw their appearance herein, also to withdraw the demurrer to complaint and their papers, all of which is granted by the court.”
Appellant further alleged that afterwards, on September 9, 1885, being the third judicial day of the same term of the court below, when appellant, McArthur, was not present in court, and when Murphy & Gould, attorneys as aforesaid, were absent, the court without the consent of appellant, or of Murphy & Gould, changed and amended the record of the aforesaid entry to read as follows:
Appellant further averred that he, not being in court, was then ruled to answer instanter, and, failing to answer, he was then and there defaulted; that afterwards, on the seventeenth judicial day of the same term of such court, appellee took a personal judgment in said cause against the appellant for $5,000, and costs, taxed at $ -----, without having had personal or other service on appellant, or without his being in court, either in person or by attorney. A true and complete transcript of the record in said cause was filed with and made part of the complaint herein.
Appellant then averred that up to the time his sole attorneys, Murphy & Gould, withdrew their appearance for him in said cause, the only prayer of appellee's complaint therein was for the cancellation of said mortgage and notes; but that afterwards appellee, by his counsel, surreptitiously, fraudulently, and without right so amended his complaint as to ask a personal judgment of $5,000 against the appellant herein, and that, without the service of summons on him, and without his being in court, the appellant said that the following words, to-wit: “And the plaintiff is informed that said defendant claims to have sold, and that one David Sturges claims to have purchased, said notes mentioned, without notice, before due, for a valuable consideration, in the usual course of business, and before the commencement of this action,”-and the following words, to-wit: “And the plaintiff asks that, if it shall appear on the trial hereof that said McArthur has sold said notes before maturity for value, without notice of this the plaintiff's demands, then the plaintiff demands judgment for five thousand dollars,” etc.,-made and constituted the surreptitious, fraudulent, and unlawful amendments aforesaid. And appellant said there was manifest error apparent in the record of said cause, in this, to-wit: (1) The Starke circuit court erred in overruling appellant's demurrer to appellee's complaint therein. (2) The Pulaski circuit court erred in ruling appellant to answer instanter, after his attorneys had, by leave of court, withdrawn their appearance for him, he not otherwise appearing in said cause. (3) It was error for appellee to amend his complaint, after defaulting appellant, so as to ask a personal judgment, when, prior thereto, he had asked for a judgment in rem only, and when appellant was not in court, either in person or by attorney. (4) The court erred in rendering a personal judgment against appellant, when there had been no personal or other service of process on him, and when his only attorneys had withdrawn their appearance...
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