Penrose v. McKenzie

• Decision Date: 23 October 1888
• Citation: 18 N.E. 384,116 Ind. 35
• Parties: Penrose et al. v. McKenzie.
• Court: Indiana Supreme Court

116 Ind. 35

18 N.E. 384

Penrose et al.

v.McKenzie.

Supreme Court of Indiana.

October 23, 1888.

Appeal from circuit court, Montgomery county; E. C. Snyder, Judge.

John H. Burford, for appellants. Wright & Seller, for appellee.

Howk, J.

In this case the only error complained of here by appellants, the defendants below, is the decision of the court below in overruling their demurrer to appellee's complaint. In his complaint, appellee, McKenzie, alleged that, on the 18th day of September, 1885, he instituted certain proceedings in attachment against one Orren J. Stoddard, who was a non-resident of the state of Indiana, in the Montgomery circuit court; that on September 23, 1885, appellee caused an order of attachment to be issued in said cause, and on September 24, 1885, the sheriff of Montgomery county levied such writ on and attached certain real estate, particularly described, in the county aforesaid; that on November 20, 1885, appellee recovered judgment in said cause against said Orren J. Stoddard, for $1,016.66, and a judgment, also, in his attachment proceedings for the sale of said attached real estate; that on January 9, 1886, said attached real estate was sold at sheriff's sale, under the aforesaid judgment for the sale thereof, and appellee became the purchaser of such real estate at such sale thereof, and was then the owner of such real estate by virtue of his said purchase. Appellee further averred that appellant Emlin G. Penrose filed a proper affidavit entitling him to have execution, and claimed to have purchased the same real estate theretofore described, on the 2d day of January, 1886, at a sheriff's sale, upon said execution issued to the sheriff of Montgomery county, on a pretended judgment which said Penrose claimed to have obtained against said Orren J. Stoddard, on April 27, 1878, before one Byron R. Russell, a justice of the peace of Union township, in said county, a transcript of which so-called judgment was filed in the clerk's office of said Montgomery county, on the 30th day of April, 1878, setting out a copy of such so-called judgment. And appellee alleged that appellant Penrose had received from defendant Harper, as sheriff of such county, a certificate of his purchase of such real estate upon such so-called judgment; and appellee averred that such so-called judgment was null and void, for the following reasons, namely: (1) Because the justice of the peace before whom said cause was tried had no jurisdiction of the subject-matter. (2) Because such justicehad no jurisdiction of the person of said Orren J. Stoddard. (3) Because no valid or legal process or summons was ever served upon the defendant. (4) Because the pretended summons was void, having been issued to be served upon a person who resided outside of the township where the justice resided and held his office. (5) Because the pretended summons was not directed to any constable of said township. (6) Because the pretended summons was not delivered to any deputy-constable of said township. (7) Because the pretended summons was not delivered to a special constable. (8) Because no summons was ever read to said Orren J. Stoddard. (9) Because no copy of said summons was left at the last or usual place of residence of said Orren J. Stoddard. (10) Because said suit was not commenced by a capias ad respondendum, nor by proceedings in attachment against said Orren J. Stoddard. (11) Because at the time of the filing said complaint before said Esquire Russell, and at the time of issuing said summons, and of the acknowledgment of the indorsement on said summons, and on the day said Stoddard was defaulted, the said Stoddard was a non-resident of the state of Indiana, and was a resident of the state of Iowa. Wherefore appellee asked that the so-called judgment of said justice of the peace might be declared void, and that Sheriff Harper and his successors in office might be perpetually enjoined from executing to appellant Penrose, or his assigns, a deed to said real estate, under such so-called judgment, and for other proper relief. Appellant's joint demurrer to appellee's complaint, upon the ground that it did not state facts sufficient to constitute a cause of action, was overruled by the court. They excepted to this ruling, and refused to plead further, and thereupon the court rendered its judgment and decree against them in favor of appellee, in accordance with the prayer of his complaint.

Did the court below err in overruling the demurrer to the complaint for the alleged insufficiency of the facts therein to constitute a cause of action? This is the only question we are required to consider and decide in this case. We have heretofore given a full summary of the facts averred by appellee in his complaint herein, except such facts as were shown by the so-called judgment itself, which constituted a part of such complaint. It appeared from such so-called judgment that on April 17, 1878, Emlin G. Penrose, by his attorney, filed his complaint against said Orren J. Stoddard, before Byron R. Russell, J. P., etc., upon a foreign judgment which said...