The Indianapolis, Decatur & Western Railway Company v. Sands

• Decision Date: 28 November 1892
• Docket Number: 16,550
• Court: Indiana Supreme Court
• Parties: The Indianapolis, Decatur & Western Railway Company et al. v. Sands et al., Trustees

32 N.E. 722

133 Ind. 433

The Indianapolis, Decatur & Western Railway Company et al. v. Sands et al., Trustees

No. 16,550

Supreme Court of Indiana

November 28, 1892

From the Marion Superior Court.

Judgment affirmed, with costs.

H Crawford, N. C. Butler, F. Winter, J. B. Elam, and W. R Crawford, for appellants.

A. L Mason, J. E. Risley, J. M. Bowers, and R. B. F. Peirce, for appellees.

OPINION

Olds, J.

This suit was brought by Sands and Peirce, trustees, in the Marion Superior Court, to enforce the security of a first mortgage, executed in 1875, by the Indianapolis, Decatur & Springfield Railway Company--a consolidated corporation, existing under the laws of Indiana and Illinois--to Emott and Crane, trustees. Emott died and Sands was duly appointed his successor as trustee, and Crane died, and Peirce was duly appointed his successor as trustee. This mortgage was made to secure bonds to the amount of $ 1,800,000.

Besides the original grantor in the trust deed, the Indianapolis, Decatur & Western Railway Company was made defendant as the holder of the legal title to the mortgaged property. The Farmers' Loan and Trust Company, and Noble C. Butler, trustees in certain junior mortgages, were also made defendants, as well as some other parties. A final decree was rendered in favor of the appellees; the nature of the decree, we need not here mention. The Indianapolis, Decatur & Western Railway Company took a separate appeal to the general term of the Marion Superior Court, as did the Farmers' Loan and Trust Company and Noble C. Butler, trustees. The Superior Court in general term affirmed the judgment of the court in special term, and separate appeals were prayed by the Indianapolis, Decatur & Western Railway Company, and the Farmers' Loan and Trust Company and Butler, trustees, and each assign errors separately, alleging that there is error in the ruling of the court at general term in affirming the judgment of the court at special term.

In the consideration of the case on this appeal, we are met at the threshold with the proposition that the decree in the case was entered by agreement and consent, at least in so far as appellant, the Indianapolis, Decatur & Western Railway Company, is concerned, and so far as the other appellants are concerned, they consented to the form, if not to the substance, of the decree; and it is urged on the part of the appellees that, such being the fact, the judgment must be affirmed without considering the merits of the case, while the counsel for appellants contend that the judgment is not a judgment by consent or agreement of the parties, and that even conceding the judgment to have been rendered by agreement and consent, the consent could not augment the jurisdiction of the court, or authorize it to exceed its jurisdiction, and that the judgment rendered exceeds the jurisdiction of the court. As to the first proposition, we have no doubt. That the record showed a judgment by the consent and agreement of certain of the parties, including the Indianapolis, Decatur & Western Railway Company, there can be no question. There appears in the record, next preceding the judgment, a written agreement, signed by the appellees by their attorneys, and by the attorneys representing the Indianapolis, Decatur & Springfield Railway Company and the Indianapolis, Decatur & Western Railway Company, for said defendants, and by the First National Bank of Indianapolis, by its attorneys; in which agreement it is expressly stipulated and agreed as follows:

"It is hereby stipulated and agreed between the undersigned parties hereto, by their respective attorneys, that judgment shall be rendered herein in favor of the above-named plaintiffs, upon the 23d day of June, 1891; and it is further stipulated and agreed by and between the said parties, as above, that the form of the decree to be entered in pursuance of the first clause of this stipulation shall be and is as annexed hereto; and it is further stipulated and agreed that such change, if any, as this court shall see fit to make in the form of the annexed decree, on the application of R. L. Ashhurst, trustee, or any other parties not signing this stipulation, shall be made without prejudice to this stipulation, which shall stand as to the decree thus altered against all parties signing this stipulation."

This agreement is dated and signed February 26, 1891. As it appears, the agreement was signed on the 26th day of February, and it was stipulated therein that the judgment should be rendered on the 23d day of June, 1891.

The record shows that on the 23d day of June, 1891, the day named in the agreement for the rendition of the judgment, the agreement and the decree were entered of record; and it nowhere appears that the decree, as entered, was other than the one agreed to, or that it was in any way modified by the court. It is true that after the record shows the entering of the decree, it then shows the filing of the motion, by the appellants, to modify. That an appeal may be taken under the statute in such a case, we do not question. But the record, as we interpret it, clearly showing that the judgment from which the appeal is taken, was rendered by the consent and agreement of the parties, the question is presented as to whether or not this court will affirm the judgment without considering the merits of the cause, or will proceed to determine the questions presented, the same as if there had been a good-faith controversy between the parties in the court below, and the judgment had been rendered by the court without any consent or agreement of the parties.

We think the cause, as to the parties entering into the agreement and consenting to the judgment, should not be considered on its merits, but should be affirmed, and this conclusion, we think well supported by many well-settled rules in addition to, and independent of, the decisions holding that a case will not be considered on its merits when a consent decree is entered. It is a rule too well settled to require the citation of authority, that, if a party induces a court to make a ruling on the trial of a cause admitting incompetent evidence, he can not be heard to complain if the court adheres to the same ruling, and admits incompetent evidence in behalf of his adversary; that the erroneous ruling being made at his instance, he will be bound by the application of the same rule throughout the case, and this court will not reverse the judgment, though the ruling be erroneous. The investigation goes only far enough to ascertain that the ruling was made at the instance of the complaining party.

It is alike a well-settled rule that if one consents, or even does not object, when he has an opportunity to do so, to the introduction of improper evidence, he can not afterwards predicate error on a motion to strike it out.

These rulings are grounded in principle. They are consistent with our practice requiring exceptions to be taken to a ruling at the time. A party can not, by request or by his consent, induce the court to make a ruling or enter a judgment which is erroneous, and then immediately challenge it as erroneous, and procure a reversal on account of a ruling or an act done by the court at his instance or with his consent. It is but fair to the court, and but just to the adverse party, to require a party contesting a case to object to a ruling made against him at the time, or withhold his consent to the rendition of a judgment, if he desires to question its validity, and is unjust and unfair to hold that a party may induce and consent to a ruling or a judgment, and then secure a reversal on account of that being done which he requested, or joined in requesting, should be done.

The presumption is that the court would have rendered a legal and valid judgment within the issues in the case; but here is a case presented where it is shown that the court yielded to the request of the parties and rendered such a judgment in manner and form as the parties agreed to, and now one of them is asking to be relieved from an error which it made in its agreement and induced the court to acquiesce in.

It is a well-settled rule that a judgment entered by agreement by a court of general jurisdiction, having power in a proper case...