Muncie Nat'l Bank v. Miller

• Decision Date: 20 June 1883
• Docket Number: 10,392
• Citation: 91 Ind. 441
• Parties: Muncie National Bank v. Miller
• Court: Indiana Supreme Court

91 Ind. 441

Muncie National Bank v. Miller

No. 10,392

Supreme Court of Indiana

June 20, 1883

Petition for a Rehearing Overruled Nov. 24, 1883.

From the Delaware Circuit Court.

The judgment is reversed with costs, and the cause is remanded with instructions to sustain the demurrers to each paragraph of the complaint, and for further proceedings not inconsistent with this opinion.

C. W Moore, R. S. Gregory and --- Silverburg, for appellant.

W Brotherton and W. W. Orr, for appellee.

OPINION

Howk J.

On the 28th day of January, 1876, the appellant, the Muncie National Bank, as plaintiff, filed its complaint on a promissory note, in the court below, against James L. Simmons, Jacob H. Wierman, Andrew Wilson, William Goings, Francis Sipe and the appellee, Luther F. Miller, as defendants. On the same day, the clerk of the court issued a summons on such complaint, directed to the sheriff of Delaware county, and commanding him to summon each and all of the above named defendants to appear before said court on the second day of the next term thereof, to be held at the court-house in the city of Muncie on the first Monday of February, 1876, and answer such complaint. This summons was personally served, on the day of its date, on each and all of said defendants except the appellee, Luther F. Miller, and, as to him, the sheriff's return was silent. On the complaint, and of the date of its filing, the appellee Luther F. Miller executed a written waiver of the issue and service of a summons on him, in said cause, and entered his appearance thereto in the words and figures following, to wit:

"January 28th, 1876. I hereby waive the issuing and service of summons upon me, in the within entitled cause, and appear thereto, and consent to the same proceeding to final trial and judgment at the February term of the Delaware Circuit Court, 1876.

(Signed) Luther F. Miller."

Such proceedings were had in said cause, as that, at the February term, 1876, of the court below, to wit, on the 26th day of February, 1876, judgment was then and there, and therein, rendered in favor of the Muncie National Bank, and against each and all of the above named defendants, Luther F. Miller included, for the sum of $ 1,026.26, and the costs of suit.

More than five years afterwards, to wit, on the 17th day of May, 1881, the appellee, Luther F. Miller, commenced this suit against the appellant to obtain a decree of the court declaring void the aforesaid judgment against him, and enjoining the collection thereof. His complaint was in two paragraphs, to each of which the appellant's demurrer for the want of facts was overruled by the court, and its exception saved to this ruling. The appellant answered specially in a single affirmative paragraph, to which the appellee demurred upon the ground that it did not state facts sufficient to constitute a defence to his action. This demurrer was sustained by the court, and to this ruling the appellant excepted and declined to amend or answer further. The court thereupon rendered judgment for the appellee, in accordance with the prayer of his complaint, declaring the aforesaid judgment as against the appellee Luther F. Miller void and of no effect, and perpetually enjoining the appellant from enforcing the collection of such judgment, by execution against the appellee, or his property.

Errors are assigned by the appellant in this court, which present for decision the following questions, namely:

1. Does the judgment recovered by the Muncie National Bank against Luther F. Miller, in the court below, on the 26th day of February, 1876, come within the scope of the decision of this court in McCormack v. First National Bank of Greensburgh, 53 Ind. 466, and is it therefore null and void?

2. If it be conceded that the judgment referred to falls within the doctrine of the case cited and is avoided thereby, can the appellee Luther F. Miller maintain this action to be relieved from such judgment and to enjoin its collection in view of and notwithstanding the curative statute of March 2d, 1877, entitled "An act legalizing certain judgments rendered without the formal service of process, and sales thereon, and declaring an emergency?" Acts 1877, Reg. Sess., p. 93.

We deem it unnecessary for us to consider or decide the first of these two questions, although there are marked differences between the case cited and the case at bar. The former was a suit brought by the judgment defendants, within the time allowed by law, to obtain a review of the judgment for error of law appearing in the proceedings and judgment; while, in the case now before us, the appellee brought his action against the appellant long after the expiration of the time allowed by law for obtaining a review of the former judgment, not to obtain such review, but to have the judgment against him annulled and declared void, and to enjoin its collection. It may well be doubted, therefore, as it seems to us, whether or not the doctrine of the case cited can be made applicable to the judgment of which the appellee complains in the case in hand.

Passing this point, however, we come to the consideration of the second question above stated. The preamble and first section of the above entitled act of March 2d, 1877, were as follows:

"Whereas, It has been represented to this General Assembly that some of the courts of this State have rendered judgments and decrees in cases where the service of process was attempted to be waived by written agreement, not endorsed on the summons, and without the formal service...