Rudisell v. Jennings
| Decision Date | 15 May 1906 |
| Docket Number | 5,739 |
| Citation | 77 N.E. 959,38 Ind.App. 403 |
| Parties | RUDISELL v. JENNINGS |
| Court | Indiana Appellate Court |
Rehearing denied June 22, 1906, Reported at: 38 Ind.App. 403 at 408.
From Brown Circuit Court; W. J. Buckingham, Judge.
Suit by Nathan M. Jennings against Bailey Rudisell and wife. From a decree for plaintiff, said Rudisell appeals.
Affirmed.
L. E Ritchey, for appellant.
E. F Barker and B. F. Watson, for appellee.
Appellee sued appellant and his wife upon a promissory note and to foreclose a chattel mortgage given to secure its payment. The court made a special finding of facts and stated its conclusions of law thereon. By its conclusions of law the court held that appellant's wife was not liable, and rendered judgment in her favor for costs, and against appellant upon the note and to foreclose the mortgage as to all the property described therein, except two cows, which the court found belonged to appellant's wife.
Appellant moved for a venire de novo, for a new trial, and to modify the judgment, all of which motions were overruled. The errors assigned are the overruling of the demurrer to the complaint and the overruling of the three motions to which we have just referred.
Two objections are urged to the complaint: (1) Because it shows upon its face that the court did not have jurisdiction of the parties defendant; (2) the description of the mortgaged property was insufficient.
The mortgage which is filed as an exhibit to the complaint shows that the mortgagors at the time of its execution were residents of Johnson county, Indiana, and that the mortgage was recorded in that county. The suit was brought in Brown county, and there is no averment in the complaint that the mortgagors, at the time of the commencement of the action, resided in that county. The ground of the demurrer was that the complaint did not state facts sufficient to constitute a cause of action. A circuit court is a court of general jurisdiction, and it is only when the want of jurisdiction appears on the face of the complaint that a demurrer will lie. In actions in such a court it is not necessary that the complaint should affirmatively show that the court has jurisdiction. If there is nothing in the complaint to show whether the court has or has not jurisdiction, the question cannot be raised by demurrer, as the jurisdiction will be presumed. Brownfield v. Weicht (1857), 9 Ind. 394; Ragan v. Haynes (1858), 10 Ind. 348; Godfrey v. Godfrey (1861), 17 Ind. 6, 79 Am. Dec. 448; Board, etc., v. Tichenor (1891), 129 Ind. 562, 29 N.E. 32; 1 Works' Practice (3d ed.), § 474; Kinnaman v. Kinnaman (1880), 71 Ind. 417; Chapell v. Shuee (1889), 117 Ind. 481, 20 N.E. 417. It does not appear from the face of the complaint that the Brown Circuit Court was without jurisdiction, and, this being true, appellant could not question the jurisdiction, except by answer. Eel River R. Co. v. State, ex rel. (1896), 143 Ind. 231, 42 N.E. 617. Under these authorities it must be held that the court correctly overruled the demurrer to the complaint.
The property embraced in the mortgage is described as follows: "Two Jersey cows, three and five years old; three work horses, age, eight years and nine years; one farm wagon." The complaint specifically describes the property, and avers that it was the only property of its character owned by the mortgagors. It is further averred that the mortgagors still own said property and are in possession of it. It is laid down in 1 Cobbey, Chattel Mortgages, § 188, that "the general rule seems to be that, as between the parties, any description is good, if the parties at the time knew and understood what the mortgage covered." This rule is approved by the Supreme Court in Baldwin v. Boyce (1898), 152 Ind. 46. 3, 51 N.E. 334 Am. and Eng. Ency. Law, 181.
It has been held that a complaint upon a note and to foreclose a mortgage is good on demurrer, even though the description of the property in the mortgage is insufficient. Bayless v. Glenn (1880), 72 Ind. 5. Our conclusion is, therefore, that there is no merit in appellant's contention that the complaint is bad because of an insufficient description of the property.
This brings us to the special finding of facts and conclusions of law. The court found that appellant and his wife executed the note and mortgage in suit, and that the mortgage was duly recorded in Johnson county, Indiana, where the mortgagors at the time resided; that the mortgagors were husband and wife that the two cows...
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