Runner v. Scott
| Decision Date | 17 May 1898 |
| Docket Number | 18,436 |
| Parties | Runner, Assignee, v. Scott, Executor |
| Court | Indiana Supreme Court |
From the Howard Circuit Court.
Affirmed.
G. P Haywood and C. A. Burnett, for appellant.
B. C Moon and Conrad Wolf, for appellee.
This was an action brought by appellant to enjoin the enforcement of a judgment in attachment. On the overruling of a demurrer to the complaint, and the filing of an answer in general denial, the cause was submitted to the court. There was a special finding of facts with conclusions of law against the appellant; and over a motion for a venire de novo, and a motion for a new trial, judgment was rendered in accordance with the conclusions of law.
It is contended by the appellant that the court erred in its conclusions of law, and also in overruling the motion for a venire de novo and the motion for a new trial.
We are, however, first met with a contention of appellees, who have assigned as cross-error that the court overruled their demurrer to the complaint. Counsel for appellant intimate that the sufficiency of the complaint, under this cross-assignment, will not be considered, for the reason that there was a special finding of facts with conclusions of law thereon; and because it has been frequently decided that errors in overruling demurrers to pleadings, when there is a special finding or a special verdict, are not material, as a correct statement of the law upon the facts found would cure the error, if any had been committed in the ruling upon the demurrers. Scanlin v. Stewart, 138 Ind. 574, 37 N.E. 401; Woodward v. Mitchell, 140 Ind. 406, 39 N.E. 437; Ross v. Banta, 140 Ind. 120, 34 N.E. 865; Walling v. Burgess, 122 Ind. 299, 7 L. R. A. 481, 22 N.E. 419; State v. Vogel, 117 Ind. 188, 19 N.E. 773; Louisville, etc., R. W. Co. v. Downey, 18 Ind.App. 140, 47 N.E. 494; Cox v. Hayes, 18 Ind.App. 220, 47 N.E. 844; Smith, Tr., v. Wells Mfg. Co., 148 Ind. 333, 46 N.E. 1000.
But by the rule thus stated, supported as it is by the authorities cited, it is not to be understood that good pleadings are not required where there are special findings, quite as well as where the finding is general. By saying that an error made in overruling a demurrer to a pleading is not material where there is a special finding, inasmuch as a correct conclusion of law upon the facts found would cure the error, if any, the courts do not mean, as the cases cited will show, that correct pleadings may be dispensed with, but simply, that, since one who excepts to conclusions of law thereby admits that the facts have been correctly found, it will, in general, be presumed that the facts in issue are correctly stated, and, hence, that, in considering the correctness of the conclusions of law, all questions that could be raised on the sufficiency of the pleadings will necessarily be considered. It is evident that if the facts put in issue by the pleadings are correctly found by the court, then the law as applied to such facts must control the decision of the case, and, hence, that it will be unnecessary to consider any objections to the sufficiency of the pleadings.
Of course the rule has no application where a pleading is stricken out, by sustaining a demurrer to it. The rule applies only where the pleading is retained, by overruling the demurrer directed against it. Neither could the rule, strictly speaking, be applicable where facts had been found which were not within the issues made by the pleadings. Such facts should be disregarded. But a party by excepting to the conclusions of law might, perhaps, be held to have waived any such error in the finding, by admitting that the facts had been correctly found, which waiver would include, of course, an admission that the facts found were within the issues.
It is plain, therefore, that even though there has been a special finding of facts, with conclusions of law thereon, a party may nevertheless insist upon a consideration of the correctness of the court's action in overruling a demurrer to a pleading. This is particularly true where, as in the case before us, the party who objects to the pleading did not except, and did not wish to except, to the conclusions of law, but simply insists that the pleading is defective, and that the court erred in overruling a demurrer to it. And because, by considering the conclusions of law, there might be a correct decision of the questions raised, it does not follow that the same end may not also be reached by considering the sufficiency of the pleading.
From the complaint it appears that the appellant is the assignee of the Commercial Bank of Oxford, Indiana, the deed of assignment dating from May 19, 1893; and that the appellee Scott is the executor of the last will of James T. Scott, who departed this life August 8, 1896; that on January 31, 1894 one Zimri Dwiggins and his wife executed two mortgages on the real estate in controversy, situated in Jasper county, and then owned by the said Dwiggins, to secure the payment to appellant of debts amounting to $ 12,000.00; that said mortgages were foreclosed for $ 13,989.95, and the lands sold to appellant for $ 10,000.00, in part satisfaction of said judgment; and that appellant holds a sheriff's certificate of such sale, dated December 26, 1896. It is further alleged, that, on May 12, 1893, the said James T. Scott commenced a suit in the Howard Circuit Court to recover the sum of $ 825.00 from the said Dwiggins and others, as partners, doing business under the name of the Farmers' Bank of Greentown in Howard county; that on said day said Scott, on affidavit that Dwiggins was a nonresident of the State, procured the issuance of a writ of attachment against the property of said partnership in Howard county, by virtue of which, such property was seized by the sheriff and appraised at $ 18,142.00; that on May 13, 1893, on Scott's petition, reciting the insolvency of said partnership, that there were numerous creditors, and that said Farmers' bank had suspended payment, a receiver was appointed to take charge of the assets of the partnership; and thereupon the sheriff, as ordered, turned over to the receiver all the partnership property levied upon by virtue of said writ of attachment; that after the turning over to the receiver of such attached property, on May 13, 1893, no further action was taken in the attachment proceedings until May 29, 1893, when Scott, without filing any additional affidavit or bond, and without having obtained any personal service upon Dwiggins, without having attached any property of Dwiggins in Howard county, except the partnership property already mentioned, or without having summoned any garnishee in Howard county who was then or thereafter found to be indebted to Dwiggins, or to have property in his hands subject to attachment, procured a writ of attachment to be issued by the clerk of the Howard Circuit Court to the sheriff of Jasper county, commanding said sheriff to levy upon and take into his possession the personal property, and attach the land of the defendant in said county, or so much thereof as would satisfy the claim of the plaintiff; that by virtue of said writ, and without other authority, the sheriff of Jasper county did, on May 31, 1893, attach the...
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