Yorn v. Bracken
| Decision Date | 24 November 1899 |
| Docket Number | 18,671 |
| Citation | 55 N.E. 257,153 Ind. 492 |
| Parties | Yorn et al. v. Bracken |
| Court | Indiana Supreme Court |
From the Clinton Circuit Court.
Affirmed.
William W. Spencer and Edwin P. Ferris, for appellants.
John C Morrison and Martin A. Morrison, for appellee.
Suit by appellee against appellants to foreclose a mortgage on real estate and to recover judgment on certain notes secured thereby. Personal judgment and a decree of foreclosure were taken by default against all of the appellants, except Wills and Wills, and judgment was rendered against them on demurrer to the complaint.
Appellants each assign as error that the complaint does not state facts sufficient to constitute a cause of action.
It is alleged in the complaint, among other things, that a mortgage was executed by one Morrison and wife to appellee on the real estate described to secure eleven promissory notes executed by said Morrison to appellee, and said mortgage and six of said notes are properly made part of the complaint. Said Morrison and wife sold and conveyed said real estate by a good and sufficient deed to appellants Wills and Wills, who, as a part of the consideration for said real estate, assumed and agreed to pay all of said notes, which contract of assumption was contained in the deed as follows "And the grantees, as a part of the consideration for this deed assume and agree to pay a certain mortgage for $ 450, and interest thereon from April 21, 1895, given by the grantor to Patty H. Bracken, etc." "That thereafter appellants John M. Hatton and Carrie B. Hatton, and John A. Yorn and Gertrude Yorn entered into a contract with said appellants Wills and Wills by which they, for a valuable consideration, then and there to them paid, assumed, and agreed to pay all of said notes and debts secured by said mortgage; that the appellants John M. Hatton, and Carrie B. Hatton, and John A. Yorn and Gertrude Yorn, claim to have some interest in or lien upon said lands adverse to the lien of appellee thereon, but appellee avers that said appellants, nor either of them, have any interest in or lien upon said real estate whatever, but their claims are wholly unfounded and without right, and that they be required to set forth any right to or lien upon said real estate, if any they have." Prayer for a personal judgment, and foreclosure of the mortgage against all of appellants.
The only appellants asking a reversal are Hatton and Hatton, and Yorn and Yorn, against whom judgment was rendered by default. Said appellants seek to challenge the personal judgment recovered against them on their contract with Wills and Wills to pay the note secured by said mortgage, on the ground that their said contract was to pay the debt of another, and appellee was not entitled to recover thereon because the same was not in writing as required by the statute of frauds. When the court below has jurisdiction over the parties no question not presented to said court is available on appeal, except jurisdiction over the subject of the action, and whether the complaint states facts sufficient to constitute a cause of action. § 346 Burns 1894, § 343 Horner 1897; Elliott's App. Proc. §§ 470, 472. The record in this case shows that a summons was issued and duly served upon said appellants Hatton and Hatton, and Yorn and Yorn. The court therefore had jurisdiction over their persons as well as the subject of the action. The rule is well settled in this State that when the court has jurisdiction over the person of a defendant and the subject of the action, the validity of the judgment cannot be questioned for the first time on appeal. Elliott's App. Proc. §§ 334, 332, 331, 330, 784, and cases cited; Baker v. Ludlam, 118 Ind. 87, 20 N.E. 648; Shoaf v. Joray, 86 Ind. 70; Searle v. Whipperman, 79 Ind. 424; Tachau v. Fiedeldey, 81 Ind. 54; Hardy v. Miller, 89 Ind. 440. Even if a judgment could be assailed for the first time in this court, an assignment of error, as in this case, that the complaint does not state facts sufficient to constitute a cause of action, would present no question upon the judgment.
Said appellants insist that, as judgment was taken against them by default, their assignment of error raises every question that would have been presented by a demurrer for want of facts to the complaint in the court below, citing Old v Mohler, 122 Ind. 594, 597, 23 N.E. 967. See, also, Elliott's App. Proc. § 475. A demurrer for want of facts is filed before judgment, and therefore raises no question as to the judgment, its validity, or form, and if the complaint entitles the plaintiff to any part of the relief prayed for against the party demurrring, must be overruled. Owen Township v. Hay, 107 Ind. 351, 8 N.E. 220; Culbertson v....
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