Whipperman v. Dunn

• Decision Date: 18 June 1890
• Docket Number: 13,737
• Citation: Whipperman v. Dunn, 24 N.E. 1045, 124 Ind. 356 (Ind. 1890)
• Parties: Whipperman et al. v. Dunn et al
• Court: Indiana Supreme Court

24 N.E. 1045

124 Ind. 356

Whipperman et al. v. Dunn et al

No. 13,737

Supreme Court of Indiana

June 18, 1890

Original Opinion of March 18, 1890, Reported at: 124 Ind 349.

OPINION

Coffey, J.

The appellee Newsome has filed a petition for a rehearing in this cause, in which he insists:

First. That this court erred in reversing the cause as to him because the appellants filed no motion for a new trial as to the issues involved between them and himself on his cross-complaint.

Second. That the cross-complaint of the appellants against him is insufficient.

One object, in common, was sought by all the parties to this suit, namely, an adjustment of the liens against the property described in the several pleadings in the cause. The liens were adjusted by the circuit court upon the erroneous theory that those older than Newsome's judgment had been satisfied.

It is perfectly clear that justice can not be done between the parties without a new trial as to the whole case. In such cases the court will order a new trial of all the issues in the cause, to the end that justice may be done. Bisel v. Tucker, 121 Ind. 249, 23 N.E. 81; State, ex rel., v. Templin, 122 Ind. 235, 23 N.E. 697.

The first paragraph of the cross-complaint filed by the appellants against the appellee Newsome sought to have a lien held by them, anterior in date to the appellee's judgment, declared a lien superior to said judgment.

The second paragraph of said cross-complaint sets up the amount paid for necessary repairs to property upon which the liens rested.

The first objection urged to the cross-complaint is that there is a defect of parties.

The demurrer was based upon the ground that the cross-complaint did not state facts sufficient to constitute a cause of action. Such a demurrer raises no question of parties. Dunn v. Tousey, 80 Ind. 288; Johnson School Tp. v. Citizens Bank, etc., 81 Ind. 515.

The facts stated authorized the court to decree that the lien of appellants, if they held one, was superior to the lien created by appellee's judgment.

It is contended by appellee, however, that the mistake in the description of the land covered by the mortgage set up in the cross-complaint, was a mistake of law, and not a mistake of fact. In support of this position he cites Baker v. Pyeatt, 108 Ind. 61, 9 N.E. 112, Armstrong v. Short, 95 Ind. 326, Easter v. Severin, 78 Ind. 540, First Nat'l Bank, etc., v. Gough, 61 Ind. 147, and Rhodes v. Piper, 40 Ind. 369.

The case of Baker v. Pyatt, supra, is not an authority in favor of the position of the appellee. The other...