Schilling v. Quinn

• Citation: 99 N.E. 740,178 Ind. 443
• Decision Date: 01 November 1912
• Docket Number: 21,979
• Parties: Schilling v. Quinn et al
• Court: Indiana Supreme Court

99 N.E. 740

178 Ind. 443

Schilling v. Quinn et al

No. 21,979

Supreme Court of Indiana

November 1, 1912

From Starke Circuit Court, F. J. Vurpillat, Judge.

Action by Edgar W. Schilling against William Quinn and others. From a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590).

Affirmed.

Peters & Peters, for appellant.

Wm. J Reed and Beeman & Foster, for appellees.

Spencer J. Monks and Myers, JJ., concur in the result.

OPINION

Spencer, J.

Action by appellant against William Quinn and Loren A. White judgment creditors, and Gabriel Doyle, sheriff of Starke county, to enjoin a levy and sale under an execution issued on a judgment against said appellant in favor of Quinn and White. Appellees' demurrer was overruled and answers filed. Trial by court, resulting in a decree enjoining the sale, under the execution, of any of appellant's property, except the real estate covered by the contractor's lien. Appellant's motion for a new trial overruled.

Errors assigned are: (1) Overruling appellant's demurrers to the several paragraphs of answer; (2) overruling his motion for a new trial.

In June, 1907, a township trustee of Starke county, Indiana, awarded Quinn and White a contract to build a partition fence between the lands of appellant and one Whitney, under §§ 7377-7382 Burns 1908, Acts 1897 p. 184, which fence appellant was legally bound to maintain. Appellees, Quinn and White, constructed said partition fence, but appellant failed and refused to pay for his part of the same. June 24, 1907, appellees had their properly authenticated certificate from the trustee, showing the amount of work expended and materials used, recorded in the recorder's office of Starke county. The contractors brought an action to foreclose their lien in November, 1907, in the Starke Circuit Court, and recovered a judgment against appellant for $ 125, but no decree of foreclosure was rendered. An execution was issued to the sheriff of Starke county, ordering a levy on the property of appellant. Appellant then brought this action to restrain the sheriff from making a levy, and prays a perpetual injunction. The court granted said injunction as to a levy on appellant's property, except the southeast quarter of the southwest quarter and a certain five acres out of the northeast quarter of the southwest quarter, all in section twenty, township thirty-three north, range one west, in Starke county, Indiana.

The complaint proceeds on the theory that the court had no power to render a personal judgment against appellant, hence the judgment is void. This proposition is based on § 7380 Burns 1908, Acts 1897 p. 184, § 4, which provides that there shall be no personal liability of the trustee, but the contractors shall rely on their lien exclusively.

This is a collateral attack on a judgment of a court of general jurisdiction, which must fail, in any event, unless the judgment, on the face of it, is utterly void. Baltimore, etc., R. Co. v. Freeze (1907), 169 Ind. 370, 82 N.E. 761; Brooks v. Morgan (1905), 36 Ind.App. 672, 76 N.E. 331; Graham v. Loh (1904), 32 Ind.App. 183, 69 N.E. 474; Miedreich v. Lauenstein (1909), 172 Ind. 140, 86 N.E. 963, 87 N.E. 1029; VanFleet, Collat. Attack § 1. This judgment was not void, for the court had jurisdiction of appellant and of the subject-matter of the action.

The court may have erred in rendering a personal judgment against appellant. Burck v. Davis (1905), 35 Ind.App. 648, 73 N.E. 192. However, there might be conditions under which such action would not be erroneous. If appellant, for a lawful consideration, had agreed, in writing, to pay at a certain time the amount of the contractor's claim, a personal judgment would not have been erroneous. Relief from erroneous judgments can be obtained only through a direct attack thereon. This judgment might have been attacked by appeal, or a complaint to review it under § 645 Burns 1908, § 615 R. S. 1881. See Ross v. Banta (1895), 140 Ind. 120, 34 N.E. 865, 39 N.E. 732; Michener v. Springfield Engine, etc., Co. (1895), 142 Ind. 130, 40 N.E. 679, 31 L. R. A. 59.

An injunction will not be granted where there is an adequate legal remedy. Martin v. Pifer (1884), 96 Ind. 245; Ross v. Banta, supra; Michener v. Springfield Engine, etc., Co., supra. Appellant had an adequate legal remedy by appeal, or complaint to review.

One seeking equitable relief must do equity, and must come into court with clean hands. Pittsburgh, etc., R. Co. v. Town of Crothersville (1902), 159 Ind. 330, 64 N.E. 914; A. N. Chamberlin Co. v. H. A. Chamberlin Co. (1909),Chamberlin Co. v. H. A. Chamberlin Co. (1909), 43 Ind.App. 213, 86 N.E. 1025; Ilo Oil Co. v. Indiana Nat. Gas, etc., Co. (1910), 174 Ind. 635, 92 N.E. 1, 30 L. R. A. (N. S.) 1057. Appellant has not done equity, and has not come into court with clean hands, because he has failed to discharge his just obligation in the matter in controversy.

Where there is no showing of a meritorious defense, a court of equity will not grant relief, even where the judgment is void on its face Meyer v. Wilson (1906), 166 Ind. 651, 76 N.E. 748; Jones v. Cullen (1895), 142 Ind. 335, 40 N.E. 124; Woods v. Brown (1884), 93 Ind. 164, 47 Am. Rep. 369; Williams v. Hitzie (1882), 83 Ind. 303; 1 High, Injunctions (4th ed.) §§ 125, 126; 1 Spelling, Injunction (2d ed.) § 99.

The complaint herein stated no cause of action, and the overruling of demurrers to bad answers thereto constitutes no reversible error. Town of Windfall City v. State, ex rel. (1909), 172 Ind. 302, 88 N.E. 505; Bonham v. Doyle (1907), 39 Ind.App. 438, 77 N.E. 859, 79 N.E. 458; Whitesell v. Strickler (1907), 167 Ind. 602, 78 N.E. 845, 119 Am. St. 524.

Appellant has waived a consideration of the first cause assigned for a new trial, by failing to set out in his brief, under the title of "Points and Authorities," or to...