Noerr v. Schmidt
| Decision Date | 06 October 1898 |
| Docket Number | 18,325 |
| Citation | 51 N.E. 332,151 Ind. 579 |
| Parties | Noerr, Administratrix, v. Schmidt, Trustee, et al |
| Court | Indiana Supreme Court |
Rehearing Denied Dec. 15, 1898.
From the Marion Superior Court.
Affirmed.
John B Sherwood, for appellant.
S. M Shepard and Florea & Seidensticker, for appellees.
Appellee Schmidt, as trustee, brought this action against his co-appellees and appellant to foreclose a mortgage executed by appellant's intestate in his lifetime. Appellant's demurrer to the complaint was overruled. Appellees George and Frederick Noerr filed a counterclaim, by which they sought to be subrogated to the rights of the mortgagee under a prior mortgage on the same real estate, and to foreclose the same. The court found in favor of Schmidt, trustee, and in favor of George and Frederick Noerr upon their counterclaim, and over appellant's motion for a new trial, rendered judgment foreclosing the mortgages sued upon in complaint and counterclaim, respectively.
It is insisted by appellant that the trial court erred in overruling the motion for a new trial. The causes for a new trial not waived by a failure to argue the same are: (1) That the court erred in assessing the amount of recovery in favor of Frederick and George Noerr on the issues raised on their counterclaim, in this: that the assessment is too large; (2) that the decision of the court is not sustained by sufficient evidence; (3) that the decision of the court is contrary to law. These causes for a new trial require a consideration of all the evidence given in the cause. Appellees insist that the court cannot consider the evidence for the reason that it affirmatively appears from the bill of exceptions that it does not contain all the evidence. The bill of exceptions, although reciting that "this was all the evidence given in the cause," shows affirmatively that evidence was given at the trial which was not copied into the bill of exceptions. In such case the settled rule is that the court cannot consider the evidence in determining any of the foregoing causes assigned for a new trial. Weaver v. Kennedy, 142 Ind. 440, 41 N.E. 810, and cases cited. It follows that the court cannot consider the evidence, and without it there is nothing from which we can determine that the court erred in overruling the motion for a new trial. Moreover, if the bill of exceptions contained all the evidence given in the cause, we could not disturb the action of the trial court in overruling the motion for a new trial. Appellant does not claim that the finding of the court in favor of Schmidt, as trustee, was not sustained by sufficient evidence, or was contrary to law, or that the amount of recovery assessed in his favor was too large. Such a claim is only made as to the finding in favor of Frederick and George Noerr, on the counterclaim. If the finding of the court in favor of Schmidt, trustee, upon the issues joined upon his complaint was correct, the motion was properly overruled, even though the evidence was not sufficient to sustain the finding in favor of Frederick and George Noerr upon their counterclaim. In such case the motion should ask for a new trial of the issues joined on the counterclaim. Upland Land Co. v. Ginn, 144 Ind. 434, 439, 43 N.E. 443, and authorities cited. The following questions are, however, presented by the record: (1) Has the Marion Superior Court jurisdiction of actions to foreclose mortgages upon real estate in said county? (2) Is it necessary, in an action against an administrator and the heirs of a decedent to foreclose a real estate mortgage executed by such decedent in his lifetime, to allege in the complaint that a claim therefor had been filed against the estate? If both of these questions may be answered in the affirmative, the case is to be affirmed.
Section 10 of the act of 1871 creating superior courts, being section 1404, Burns' R. S. 1894 (1351, Horner's R. S. 1897 Acts 1871, p. 50), provides that "said court, within and for the county or counties in which it may be organized, shall have original concurrent jurisdiction with the circuit court in all civil causes except slander." Section 3 of an act concerning circuit courts, approved April 7, 1881, being section 1366, Burns' R. S. 1894 (1314, Horner's R. S. 1897, Acts 1881, p. 102), provides that circuit courts It is clear that under said section the superior court of Marion county has jurisdiction of actions to foreclose mortgages upon real estate in said county. Appellant contends, however, that by section 712 of "An act concerning civil proceedings" approved April 7, 1881, being section 1109, Burns' R. S. 1894 (1095, Horner's R. S. 1897, Acts 1881, p. 364), the exclusive jurisdiction of actions to foreclose mortgages on real estate was vested in the circuit court. We cannot agree with this contention of appellant. Said section reads as follows: "When default is made in the performance of any condition contained in a mortgage, the mortgagee or his assignees may proceed, in the circuit court of the county where the land lies, to foreclose the equity of redemption contained in the mortgage." It will be observed that the act containing said section, and the act "concerning the circuit courts," which provided that the same should not be construed to deprive criminal and superior courts of the jurisdiction conferred upon them by law, were approved the same day,--April 7, 1881. The rule is that laws in pari materia must be construed together. Black on Interpretation of Law, 204. So construed, we think it clear that section 712 of the act "concerning proceedings in civil cases," being section 1109 (1095), supra, providing that actions to foreclose mortgages on real estate may be brought in the circuit court of the county where the land lies, does not deprive the superior courts of the concurrent jurisdiction over such an action, expressly conferred by statute. Browning v. Smith, 139 Ind. 280, 37 N.E. 540; Meikel v. Meikel, 119 Ind. 421, 20 N.E. 720. It is insisted by appellee that section 2484, Burns' R. S. 1894 (2331, Horner's R. S. 1897), expressly provides that the holder of a mortgage upon a decedent's real estate, for the payment of which the personal estate of such decedent is liable, may, after the end of one year from the death of such decedent, maintain an action against the heirs and executor or administrator for the foreclosure thereof, without first filing against the estate a claim for the indebtedness...
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