Schilling v. Quinn

• Decision Date: 01 November 1912
• Docket Number: No. 21,979.,21,979.
• Citation: 99 N.E. 740,178 Ind. 443
• Parties: SCHILLING v. QUINN et al.
• Court: Indiana Supreme Court

178 Ind. 443

99 N.E. 740

SCHILLING

v.QUINN et al.

No. 21,979.

Supreme Court of Indiana.

Nov. 1, 1912.

Appeal from Circuit Court, Starke County; F. J. Virpillit, Judge.

Action by Edgar W. Schilling against William Quinn and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Transferred from Appellate Court under Acts 1901, c. 259 (Burns' Ann. St. 1908, § 1405).

Charles H. Peters and Glenn D. Peters, both of Knox, for appellant. W. J. Reed and Beeman & Foster, all of Knox, for appellees.

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 the 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, Ind., awarded Quinn and White a contract to build a partition fence between the lands of appellant and one Whitney, under Burns' Statutes 1908, §§ 7377 to 7382, inclusive, 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 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 upon appellant's property, except the S. E. 1/4 of the S. W. 1/4 and a certain five acres out of the N. E. 1/4 of the S. W. 1/4, all in section 20, township 33 N., range 1 W., in Starke county, Ind.

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 Burns' Statutes 1908, § 7380, which provides that there shall be no personal liability of the trustee, but the contractors shall rely upon their lien exclusively.

[1] 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, 169 Ind. 370, 82 N. E. 761;Brooks v. Morgan, 36 Ind. App. 672, 76 N. E. 331;Graham v. Loh, 32 Ind. App. 183, 69 N. E. 474;Miedreich v. Lauenstein, 172 Ind. 140, 86 N. E. 963, 87 N. E. 1029; Van Fleet on Collateral 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, 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 only be obtained through a direct attack thereon. This judgment might have been attacked by appeal or a complaint to review it under section 645, Burns' Statutes 1908. Ross v. Banta, 140 Ind. 120, 34 N. E. 865, 39 N. E. 732;Michener v. Springfield, etc., Co., 142 Ind. 130, 40 N. E. 679, 31 L. R. A. 59.

[2] An injunction will not be granted where there is an adequate legal remedy. Martin v. Pifer, 96 Ind. 245; Ross v. Banta, supra; Michener v. Springfield, etc., Co., supra. The appellant has an adequate legal remedy by appeal or complaint to review.

[3] One seeking equitable relief must do equity, and must come into court with clean hands. Pittsburgh, etc., R. Co. v. Town of Crothersville, 159 Ind. 330, 64 N. E. 914; A. N. Chamberlain Medicine Co. v. A. A. Chamberlain Medicine Co., 43 Ind. App. 213, 86 N. E. 1025;Ilo Oil CO. v. Indiana Natural Gas & Oil Co., 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.

[4] 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, 166 Ind. 651, 76 N. E. 748;Jones v. Cullen, 142 Ind. 335, 40 N. E. 124;Woods v. Brown, 93 Ind. 164, 47 Am. Rep. 369; Williams v. Hitzle, 83 Ind. 30; High on injunctions (4th Ed.) §§ 125, 126; Spelling on Extraordinary Remedies, § 99.

[5] The complaint herein stated no cause of action, and the overruling of demurrers to bad answers thereto constitutes no reversible...