Morgan v. Amick

• Decision Date: 14 October 1936
• Docket Number: 15225.
• Citation: 4 N.E.2d 51,102 Ind.App. 603
• Parties: MORGAN v. AMICK, Sheriff.
• Court: Indiana Appellate Court

4 N.E.2d 51

102 Ind.App. 603

MORGAN v. AMICK, Sheriff.

No. 15225.

Appellate Court of Indiana, in Banc.

October 14, 1936

Appeal from Scott Circuit Court; Frank Gardner, Judge.

Action by Ivan C. Morgan against Wilbur Amick, Sheriff of Scott County, Indiana. Judgment for defendant, and plaintiff appeals.

Affirmed.

Hottel, Mote & Smith, of Indianapolis, and Samuel B. Wells of Scottsburg, for appellant.

Rollin A. Turner, William Woodfill, and John W. Goddard, all of Greensburg, for appellee.

KIME Chief Judge.

The appellant here filed an amended complaint in the Scott circuit court asking that the sheriff of Scott county be enjoined from levying an execution issued out of the Decatur circuit court. The appellee demurred for the reason that the court had no jurisdiction of the subject-matter of the action and because the complaint did not state a cause of action. This demurrer was sustained. Appellant elected to stand on his amended complaint and refused to amend or plead further. Judgment was rendered that plaintiff take nothing by his amended complaint and that defendant recover his costs. The error assigned necessary to be discussed is the ruling of the court in sustaining the demurrer.

It appears that the Burney State Bank had been placed in the hands of a receiver in 1928 and that the receiver had sought to collect the double liability imposed on stockholders by the state constitution and filed an action to accomplish this in the Decatur circuit court naming along with all other stockholders the appellant here as one of such stockholders liable for such additional amount; that summons was duly and properly served upon appellant; that appellant did not appear in person or by attorney in response to such notice; that the action was prosecuted to judgment; that judgment was duly entered against this appellant; that the order issued out of the Decatur circuit court was properly made and certified to the sheriff of Scott county as the statute prescribed.

The question thus presented is can the process of the Scott circuit court be used to enjoin the final process of the Decatur circuit court, it being conceded that they are courts of equal and concurrent jurisdiction.

The general rule is that one court cannot control or interfere with the execution of the process and orders of another court of equal jurisdiction. This has been the law in this state for many years. Indiana & I. R. R. Co. v. Williams (1864) 22 Ind. 198; Gregory v. Perdue (1867) 29 Ind 66; Coleman v. Barnes (1870) 33 Ind. 93; Wiley v. Pavey (1878) 61 Ind. 457, 28 Am. Rep. 677; Plunkett et al. v. Black (1889) 117 Ind. 14, 19 N.E 537; Black v. Plunkett (1892) 132 Ind. 599, 31 N.E. 567; Scott v. Runner, Assignee (1896) 146 Ind. 12, 44 N.E. 755, 756, 58 Am.St.Rep. 345; State ex rel. Kunkel et al. v. Circuit Court of LaPorte (Ind.Sup.1936) 200 N.E. 614, 618.

Counsel for both parties agree with this general rule. However, appellant's counsel contend that the Decatur circuit court was without jurisdiction because the receiver had no right to maintain the action against the stockholders, because the Constitution gives this rights to creditors only, and that consequently any judgment rendered by the Decatur circuit court was absolutely void.

The main question here was before the Supreme Court in Scott v. Runner, supra and decided adversely to the appellant's contention. The court there said:

" It is, however, urged in argument that, if the Howard circuit court had no jurisdiction, then there was no order of that court to enjoin. But before that conclusion can be reached the Jasper circuit court must have jurisdiction to institute the judicial inquiry. That requires jurisdiction to interfere with the process of another court of equal jurisdiction, and that, we have seen, it has not the power to do.

" It is true that whenever a judgment is made the foundation of a right in another action in any court, whether in the court in which the judgment was rendered, or in some other court, if it appear to have been rendered without jurisdiction it may be collaterally impeached and disregarded, because it is no judgment. There are numerous ways in which such judgment may be brought in question, other than attempting to enjoin the execution of the process of the court rendering it. The question here is not, as counsel seem to suppose, whether the judgment can be collaterally impeached, but it is whether the process of one court can be used to enjoin the final process of another of equal jurisdiction.

" Counsel for appellee say, 'Why not, if the judgment on which that final process is based is void?' The answer is that that court has ample power to enjoin its own process without coming into conflict with the process of another court of equal power, and the presumption is that it will

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