McCauley v. Murdock

• Decision Date: 07 May 1884
• Docket Number: 9320
• Citation: 97 Ind. 229
• Parties: McCauley et al. v. Murdock et al
• Court: Indiana Supreme Court

97 Ind. 229

McCauley et al. v. Murdock et al

No. 9320

Supreme Court of Indiana

May 7, 1884

Petition for a Rehearing Overruled Nov. 11, 1884.

From the Superior Court of Marion County.

Reversed at appellees' costs, with instruction to sustain the motion in arrest of judgment.

J Hanna, F. Knefler and J. S. Berryhill, for appellants.

B. F Love, A. Major, H. C. Morrison and O. J. Glessner, for appellees.

Hammond, J. Elliott, J., did not participate in the decision of this case.

OPINION

Hammond, J.

The appellant McCauley, on December 4th, 1872, filed his complaint in the court below against the appellees, as makers, and the appellant Lewis, as endorser, of four promissory notes. It was alleged that the notes were payable to Lewis in a bank in this State, and were by him assigned by endorsement to McCauley for value before maturity. Issues were joined upon questions as to whether McCauley was the bona fide holder of the notes, and as to the appellees' set-off against the same on account of Lewis' indebtedness to them.

The case was tried by the court on November 13th, 1873, and at the request of the defendants, the appellees herein, the court made a special finding of the facts, stating its conclusions of law thereon. The facts thus found and the conclusions of law were stated by the court as follows:

"The court finds the notes sued on were executed at their date, and for a valuable consideration; that they were all payable at the First National Bank of Shelbyville; that said bank is a bank in the State of Indiana; that said notes were assigned absolutely by the payee to the plaintiff for a valuable consideration before due, and without notice to the assignee of any defence whatever; that they have not been paid to the plaintiff, and that there is now due on said notes $ 2,465.50. On the above facts, the court finds as conclusions of law that the plaintiff has a right to recover the above sum without relief, and directs judgment to be entered accordingly."

The appellees took no exceptions to the conclusions of law, and made no motion for a new trial. Judgment was rendered in accordance with the special findings and conclusions.

The present action was commenced by the appellees against McCauley and Lewis on September 6th, 1876. The appellants Hanna and Knefler were subsequently, by supplemental complaint, made parties defendants. The object of this action was to review the proceedings and judgment above mentioned on account of material new matter discovered since the rendition of said judgment. The appellee Murdock, as shown by the averments in the appellees' complaint, had redeemed certain real estate of his, which had been sold at sheriff's sale to McCauley under his said judgment against the appellees, and the money for such redemption, after the commencement of this action, was paid by the clerk to the appellants Hanna and Knefler, who were McCauley's attorneys. The object in making said attorneys parties defendants by supplemental complaint to the appellees' bill for review, was to enjoin them from paying said money to McCauley. Upon the issues joined in the present case there was a trial by jury, resulting in a verdict for the appellees. The appellants McCauley and Lewis, at the proper time, made separate motions for a new trial and in arrest of judgment, which were overruled. An order was then made directing McCauley and his attorneys, Hanna and Knefler, to pay into court for the appellees the money received from the clerk in redemption of Murdock's land. To this order proper exceptions were taken. A decree was then rendered on the verdict, vacating McCauley's judgment as to the appellees. On appeal by the appellants to the general term of the court below, the judgment of the special term was affirmed, and from that decision the appellants have brought the case to this court.

It is insisted by the appellants that the complaint does not state sufficient facts to constitute a cause of action, and that their motion in arrest of judgment should have been sustained.

The appellees, in their complaint for review, do not claim that there were any errors of law appearing in the proceedings and judgment sought to be reviewed. They rely solely upon material new matter discovered since the rendition of the judgment, basing their action upon sections 615-620, R. S. 1881. The new matter relied upon by the appellees consists of two alleged defences to McCauley's action, which are claimed to have been discovered since the rendition of his judgment. The first of these defences relates to a partial want or failure of consideration of the notes upon which the judgment was rendered. The second defence, had it been known to the appellees in time, would have been used by them, as they claim, to defeat the jurisdiction of the court as to their persons, thereby causing an abatement of McCauley's action. Under the first cause for review, it is alleged that a part of the consideration of the notes executed by the appellees to Lewis, and upon which McCauley obtained his judgment, was the assignment by Lewis to appellees of a certain pretended promissory note, purporting to have been executed to Lewis by one Jacob Scheibel. This note was for $ 250, dated August 22d, 1871, and payable December 25th of the same year. It is averred that Scheibel did not execute this note, and that his name thereto was a forgery.

Under the second cause for review, it is charged that the appellees did not appear to McCauley's action until it was shown by the return of the sheriff of Marion county, that he had personally served summons upon Lewis in that county; that no such service was in fact made; that by McCauley's fraud, some one, whose name was unknown to the appellees, personated Lewis, and that the sheriff was procured to read the summons to that person, supposing that he was Lewis, and made return showing service upon Lewis; that Lewis was a non-resident of the State, and that the appellees resided in Shelby county, in this State; that if the appellees had known that Lewis was not served with process, they would have raised the question of jurisdiction as to themselves by answer, but, not knowing this, they entered full appearance and answered to the merits of the action.

We will first notice the second ground relied upon for the review of the judgment. It may be questioned whether the discovery of new matter, which, if it had been known, could only have been available by plea to the jurisdiction of the court as to the person of the defendant, is good for the purpose of review. Material new...