Rainwater v. Merriman

• Decision Date: 15 May 1957
• Docket Number: No. 18851,18851
• Citation: 142 N.E.2d 467,127 Ind.App. 520
• Parties: Ray RAINWATER, Appellant, v. Edward E. MERRIMAN, Opal Clouser Oldfather and Earl W. Oldfather, her husband, Roy Bowser and _____ Bowser, his wife whose given name is unknown, Highland Realty, Inc., an indiana corporation, Donald Whitted and Dorothy Whitted, his wife, Joseph Bridwell, Appellees.
• Court: Indiana Appellate Court

Page 467

142 N.E.2d 467

127 Ind.App. 520

Ray RAINWATER, Appellant, v. Edward E. MERRIMAN, Opal Clouser Oldfather and Earl W Oldfather, her husband, Roy Bowser and _____ Bowser, his wife whose given name is unknown, Highland Realty, Inc., an indiana corporation, Donald Whitted and Dorothy Whitted, his wife, Joseph Bridwell, Appellees.

No. 18851.

Appellate Court of Indiana, In Banc.

May 15, 1957.

Rehearing Denied June 25, 1957.

Leroy Baker, Bloomington, G. W. Butler, Martinsville, for appellant.

Philip S. Kappes and Carl D. Overman, Indianapolis, Dutton & Kappes, Indianapolis of counsel, for appellee Edward E. Merriman.

ROYSE, Judge.

This is an appeal from a judgment in an action for a declaratory judgment brought by appellee Merriman against appellant and the other named appellees. (Hereinafter the term appellee shall refer to said appellee unless otherwise indicated.) The facts which brought about this litigation, as disclosed by the record, may be summarized as follows:

(Appellee Opal Clouser Oldfather and Opal Clouser are one and the same person. Appellee Earl W. Oldfather is her husband. Appellant Rainwater was at all of the times referred to herein the Clerk of the Morgan Circuit Court. Appellee Bridwell was at all of the times referred to herein the Clerk of the Johnson Circuit Court. The interests of the other named appellees appear in the statement of facts herein.)

On the 16th day of December, 1946, appellee filed his complaint for damages and possession of real estate against Opal Clouser and Wilfred Clouser and the Harvel Investment Company, Inc. in the Morgan Circuit Court, being Cause No. 24193. On the 11th day of September, 1948 said cause was removed by change of venue to the Johnson Circuit Court where the same was docketed as Cause No. 15182. On the 11th day of April, 1951 appellee recovered a judgment against said Clousers for $3,500 with interest at the rate of 6% from said date. This judgment was duly entered in the records of said court.

On the 13th day of April, 1951 appellee required appellee Bridwell to prepare and transmit to the Clerk of the Morgan Circuit Court a properly certified transcript of said judgment for the purpose of having such judgment docketed in Morgan County so that it would become a lien upon the Morgan County real estate of the judgment defendants.

On the same day a transcript of said judgment was filed in the office of the Morgan Circuit Court. Said transcript was set forth in full in the transcript record in the office of said Clerk. The heading of said transcript was as follows: 'Edward E. Merriman vs. Wilfred Clouser et al., No. 15182'. Then follows the judgment. On the same day said judgment was also recorded in Judgment Docket 20, page 40 in the office of said Clerk, which record is as follows:

'Defendant Cause No. 15182 Wilfred Clouser and Opal Clouser

Plaintiff Edward E. Merriman

Amount of Judgment $3500.00

Date of Judgment April 13 1951.'

On the same day appellant Rainwater caused the following index entry to be placed upon Judgment Docket 20 of said Morgan Circuit Court:

'Judgment Defendant Wilfred Clouser et al.

Plaintiff Edward E. Merriman

Page 40'

On the 13th day of April, 1951 appellee Opal Clouser Oldfather was the owner of certain real estate in Morgan County. On the latter date she conveyed by warranty deed said real estate to appellee Roy Bowser of Miami County, Indiana. Said deed was duly recorded in the office of the Recorder of Morgan County, Indiana.

On the 4th day of March, 1952 said Bowser conveyed this real estate by warranty deed to appellee Highland Realty Company, Inc. This deed was recorded in the office of the Recorder of Morgan County on March 13, 1952.

Subsequently, said Highland Realty Company executed a certain conditional sales contract on said real estate to the appellees Whitted.

Appellee says the appellees Oldfather, Bowser, Highland Realty Company, Inc. and Whitted contend that since said judgment was not indexed in the name of Opal Clouser, pursuant to the terms of Sec. 2-2520, Burns' 1946 Replacement, that appellee's judgment failed to become a lien on said real estate. Appellant contends the statute was fully complied with and that appellee's judgment did become a lien on said real estate; or in the event no lien did affix to said real estate, that the transcript as prepared and transmitted by appellee Bridwell was defective in that the caption thereof was incomplete since it did not reflect the names of all the parties at length and thereby led appellant to improperly index the same. Appellee Bridwell denies the transcript he prepared and sent to the Clerk of the Morgan Circuit Court was defective.

At the conclusion of the trial the court found: (1) that the facts stated in plaintiff's amended complaint for declaratory judgment were true; (2) that a controversy existed among the parties as to whether or not plaintiff's judgment became a lien upon the real estate described in the amended complaint and the effect, if any, of the actions of the defendant clerks in their official capacities, and was the proper subject of a declaratory judgment proceeding; (3) that the controversy among the parties left plaintiff without an existing one-action remedy other than an action for declaratory judgment, in which all the parties to the controversy could be joined; (4) that from the evidence in the cause defendant Ray Rainwater failed in his official and statutory duty as clerk of the Morgan Circuit Court properly to index plaintiff's judgment in the records of the Morgan Circuit Court; (5) and that plaintiff's judgment accordingly never became a lien against the real estate described in the amended complaint.

It was accordingly adjudged by the court (1) that the allegations of plaintiff's amended complaint were true; (2) that defendant Ray Rainwater failed in his official and statutory duty as Clerk of the Morgan Circuit Court properly to index plaintiff's judgment as provided by law; (3) that because of such failure on the part of defendant Ray Rainwater, no lien attached to the real estate described in plaintiff's amended complaint; (4) and that the other defendants were each without fault. ¹ The question presented by this appeal is: Was appellee entitled to a declaratory judgment in this action?

Appellant contends that the Uniform Declaratory Judgments Act does not abolish other well known causes of action, nor furnish additional remedy where an adequate one previously existed. He also contends there clearly existed a statutory remedy by which appellee could have recovered his damage, if he had in fact sustained any damage. Citing § 2-2523, Burns' 1946 Replacement. ²

He further contends that no damage was shown to have been sustained by appellee and therefore the question of appellant's liability is moot. Finally he says appellee has not attempted to get an execution against the property of Opal Clouser Oldfather and has not shown she does not have ample property within the county from which the judgment can be satisfied.

In support of his contentions appellant relies principally on the following authorities: Brindley v. Meara, 1935, 209 Ind. 144, 198 N.E. 301, 101 A.L.R. 682; Pitzer v. City of East Chicago, 1943, 222 Ind. 93, 51 N.E.2d 479; Hinkle v. Howard, 1948, 225 Ind. 176, 73 N.E.2d 674, 676; Bryarly v. State, 1953, 232 Ind. 47, 111 N.E.2d 277.

Appellee in his argument concedes the rule in Indiana in reference to declaratory judgment is as stated by appellant. He says in all the above cited cases the Supreme Court pointed out the rights and liabilities of all the parties concerned were clearly susceptible of determination in some well-established action for executory relief. He contends that is not true in this case because the controversy here involved multiple parties, all of whom were asserting positions adverse to him, based on various theories of liability. The existence of this controversy is shown by the various pleadings in the record herein. He says the question of damages was not an issue in this case and could not properly have been made so. In support of these contentions he cites: Myers v. State Life Insurance Company, 1953, 123 Ind.App. 246, 110 N.E.2d 312; Rogers v. Calumet National Bank of Hammond, 1938, 213 Ind. 576, 12 N.E.2d 261; Portage Township of St. Joseph County v. Clinic, Inc., 1941, 109 Ind.App. 365, 33 N.E.2d 786.

The leading case in this jurisdiction on the question presented here is the case of Brindley v. Meara, supra. That case grew out of a prior action wherein the appellants procured a declaratory judgment construing Chapter 74 of the Acts of 1931 as conferring power upon the Advisory Board and not upon the Trustee to select the persons that will be employed by the Trustee as investigators, etc., in discharging the duties of the Trustee concerning relief to the poor. The judgment in the first case was affirmed. Meara v. Brindley, 1935, 207 Ind. 657, 194 N.E. 351. While the appeal was pending in that case appellants filed a verified petition for further relief under Section 8 of the Declaratory Judgments Act, § 3-1108, Burns' 1946 Replacement. The petition alleged that the Trustee had made defamatory statements about the Board after said Board had, pursuant to said judgment, selected the persons to be employed by the Trustee; that after the publication of such statements the Trustee presented a claim for the allowance of salaries to certain investigators selected by her in total disregard of the statute, and the judgment declaring its effect and the resolution of the Advisory Board appointing such employees; that appellants were threatened, hampered, harassed and annoyed directly and indirectly in the performance of their duties. As further relief an order is prayed directing the Trustee to comply with the Act as construed by the Declaratory Judgment and enjoining the Trustee from interfering, etc. with appellants in the performance of their duties. Appellees...