The Midland Railway Company v. Stevenson

• Decision Date: 14 February 1893
• Docket Number: 745
• Citation: 33 N.E. 254,6 Ind.App. 207
• Parties: THE MIDLAND RAILWAY COMPANY ET AL. v. STEVENSON
• Court: Indiana Appellate Court

33 N.E. 254

6 Ind.App. 207

THE MIDLAND RAILWAY COMPANY ET AL. v. STEVENSON

No. 745

Court of Appeals of Indiana

February 14, 1893

From the Tipton Circuit Court.

Judgment affirmed.

W. R Crawford, for appellants.

W. R Fertig and H. J. Alexander, for appellee.

OPINION

GAVIN, J.

This was an action brought by appellee against appellants upon a bond given by appellants to obtain a temporary injunction against appellee selling an engine and tender levied upon by him.

The complaint alleges, among other things, that appellee was "acting constable" of Noblesville township, in Hamilton county, and, by virtue of certain executions in his hands, had levied upon a certain engine and tender as the property of the judgment defendant, the said company; that upon said company's motion, and after giving the bond sued on, a temporary injunction was issued restraining said appellee from proceeding with such sale; that appellee filed his demurrer to the complaint, and also a motion to dissolve the restraining order, both of which were sustained, and it was ordered and adjudged that said injunction be dissolved, and the plaintiff in that action refusing to plead further, judgment was rendered in favor of appellee, on November 5th, 1891, "which judgment and order remains in full force and effect; and on appeal therefrom to the Supreme Court of Indiana, taken by said railway company, the same was in all things affirmed." Claim is made for attorney's fees, loss of time, and loss of fees, and the amount thereof is alleged to be due and unpaid.

After a change of venue, there was a motion to dismiss the action as prematurely brought, and an answer thereto, to which a demurrer was overruled, and the motion to dismiss then overruled.

There was then a trial by the court on the general denial, and judgment for appellee, on special findings, for his attorney's fees and loss of time in dissolving the injunction.

There are several assignments of error which are not discussed by counsel for appellants and must, therefore, be deemed to have been waived by him.

The only errors argued by appellants in this court are:

First. That the court erred in overruling the demurrer to the complaint.

Second. That the court erred in overruling appellants' motion for judgment on the findings, and, also, in overruling the motion for a new trial, these two causes being thus grouped under one head.

It is urged as an objection to the sufficiency of the complaint that it does not appear that the executions alleged to have been in appellee's hands were issued upon valid judgments. Such objection can not be raised in this cause. This action is upon the bond--not upon the judgments. The invalidity of the executions, or of the judgments upon which they were issued, might have furnished good grounds for sustaining the injunction suit, but it is not permitted, in this action to recover the expenses of a dissolution, to test the correctness of the rulings of the court in that suit. Sipe v. Holliday, 62 Ind. 4; High on Injunctions, section 1624.

It is not sought, in this action, to recover the moneys due on the executions. A right to recover the attorney's fees alone is sufficient to sustain this complaint against a demurrer.

Appellants further insist upon the insufficiency of the complaint because it appears that the action is prematurely brought, by reason of the failure of the complaint to show that the injunction suit was finally terminated, it not appearing that the sixty days allowed for a petition for rehearing had expired. In support of this proposition, counsel cites Railsback v. Greve, 49 Ind. 271, wherein a complaint on an appeal bond is held bad because, although it alleged an affirmance of the judgment, it did not allege that the sixty days had expired, nor that the case had been certified down.

Whatever weight this case might otherwise have, its force is overthrown by the fact that in Heshion v. Scott Admr., 94 Ind. 570, the Supreme Court held a complaint on an appeal bond...