Rose v. Ingram

• Decision Date: 15 November 1884
• Docket Number: 11,239
• Citation: 98 Ind. 276
• Parties: Rose et al. v. Ingram
• Court: Indiana Supreme Court

98 Ind. 276

Rose et al. v. Ingram

No. 11,239

Supreme Court of Indiana

November 15, 1884

From the Clark Circuit Court.

A Dowling and J. K. Marsh, for appellants.

J. G Howard, J. F. Read and M. Z. Stannard, for appellee.

OPINION

Franklin C.

Appellee sued appellants to amend an execution by attaching the seal to it, and to quiet his title to certain real estate purchased thereunder.

A demurrer was overruled to the complaint; there was a trial by the court, finding for the plaintiff, and, over a motion for a new trial, judgment was rendered on the finding.

The errors assigned are the overruling of the demurrer to the complaint, and overruling motion for a new trial.

The first objection made to the complaint is that it shows that the execution, without a seal, was void, and not amendable and in support thereof we are referred to the case of Ins. Co. v. Hallock, 6 Wall. 556, wherein it was held that a copy of an order of foreclosure, without a seal, under the statute of Indiana, was void, and conferred no authority upon the sheriff to sell.

There was no question as to amendment in that case, and, indeed, if the instrument was absolutely void, there need have been no question as to amendment, for a void instrument is not amendable. Considerable confusion has crept into the books, and even in some of our own reports, over the use of the words "void" and "voidable." But upon this question, in this State, we think the current of authority is in favor of holding that the execution was voidable, and not void.

In the case of Doe v. Rue, 4 Blackf. 263, it was held that an execution was amendable after service.

In the case of Hunter v. Burnsville Turnpike Co., 56 Ind. 213, it was held that an execution without a seal was voidable, not void, and might be amended after a sale under it. In the opinion the following language is used: "There are cases which hold, that writs without a seal are not void, but voidable only, and that they may be amended, after they have been served, by attaching the seal. We incline to follow that line of decisions which holds, that process, without the proper seal, is voidable only, and therefore amendable, as being more in consonance with the general spirit of the law, which regards substance more than form. Much hardship and injury might accrue to purchasers of property on execution, or their vendees, if the sale happened to be made on an execution to which the seal, by inadvertence of the clerk, had not been affixed, if the defect could not be amended by affixing the seal. So, too, a sheriff who arrests a party on criminal process, perfect in all respects except the seal, would be liable to an action of trespass, unless the defect could be amended." See the authorities therein cited.

In the case of Doe v. Dutton, 2 Ind. 309, it was held that an execution merely voidable may be set aside on motion of the defendant, but, if not so set aside, all acts done under it are valid, and this language was approvingly quoted, and the same doctrine reaffirmed, in the case of Sowle v. Champion, 16 Ind. 165. The case of Sidener v. Columbus, etc., Turnpike Co., 56 Ind. 598, was decided in the same way and upon the authority of Hunter v. Burnsville Turnpike Co., supra.

In the case of Jones v. Carnahan, 63 Ind. 229, on p. 234, it is said that "the premature issuing of an execution is an irregularity merely. The execution is erroneous, but, like an erroneous judgment, it must be respected, and may be enforced, until it is vacated in some manner prescribed by law. No one but the defendant can complain of it; and even he can not do so in any collateral proceeding."

In the case of Reily v. Burton, 71 Ind. 118, the decision in the case of Hunter v. Burnsville Turnpike Co., supra, is again...