Douglass v. Keehn

Biddle, C. J.

Complaint by the appellee, against the appellants, upon a promissory note made by John L. Douglass to the appellee, dated May 3d, 1875, due one year from date, for $187.50. The note is secured by a mortgage on certain lands described, lying in Kosciusko county, executed by Douglass and his wife, who are the appellants. Prayer for judgment on the note, and a decree of foreclosure of the mortgage. A demurrer to the complaint for want of facts was overruled. Answer: denial, and a special paragraph alleging the following facts :

That, in the year 1873, Zebulon Clover was the owner of the real estate described in-the mortgage; that,'while he was such owner, August Trentman recovered a judgment against said Clover and John A. McDaniel, in the Kosciusko Circuit Court, on the 11th day of September, 1873, for $126.17 and costs, and also recovered another judgment, in the same court, on the same day, for $50 and costs; and that Clover owned said real estate, and was in possession thereof, at the time said judgments were rendered against him; that on the 4th day of May, 1875, the said Zehulon Clover sold and conveyed said real estate by deed to the said plaintiff, and on the 5th day of May, 1875, the plaintiff conveyed the said real estate to the defendants by warranty deed, and that the claim sued upon by the plaintiff is for the balance of the purchase-money ; that there is due the plaintiff the sum of $136.18, and that the claim due to Trentman, against said real estate, is now $268.15, over and above the amount due to the plaintiffs; that the. said Clover and McDaniel are wholly insolvent, and that Trentman is about to collect his judgments out of said real estate, upon which they are incumbrances and valid liens. "Wherefore they pray that the plaintiff be enjoined from prosecuting the present suit until he pays off or removes said liens.

To this special paragraph, a demurrer for want of facts was sustained. Trial by the court; finding for plaintiff; motion in arrest of judgment overruled; judgment; and decree of foreclosure and sale.

The assignments of error here are:

1. Overruling the demurrer to the complaint;

2. Sustaining the demurrer to the counter-claim ; and,

3. Overruling the motion in arrest of judgment.

The objection taken to the complaint is, that no copy of the note was filed therewith. This, by the transcript, appeared to be true at the time the appellants filed their brief; but, by a certiorari, a complete transcript of the record has been brought before us, which shows the following facts:

That, at the time the complaint was filed, the original note was filed with it as an exhibit, and remained on file until Commodore Clemans, attorney for the appellants, desired to take said note to Pierceton, Indiana, to show it to his clients, which desire was granted hy the attorney of the appellee, and the note was withdrawn, and so taken from the files by the said Clemans. At the time the demurrer to the complaint was considered, the court remarked to the parties that neither the note nor a copy thereof was with the complaint. The counsel for appellee then took the note from the hands of said Clemans and informed the court that he had so given the note to Clem-ans for the purpose aforesaid, whereupon Clemans remarked, in open court, that “ he was not making that objection to the complaint.” The appellee’s counsel then replaced the note with the complaint, and the court overruled the demurrer. The note remained on file with the complaint at the trial, finding and judgment, and has since so remained on file-

This state of facts shows that the note was properly filed with the complaint, was on file at the time the demurrer was decided, and at the trial, finding, and rendition of judgment, and has ever since remained on file. It also shows that the appellant, by his counsel, virtually waived the objection to the complaint for want of the exhibit, at the time the demurrer was decided. To allow a party to waive an objection to a complaint in the court below, and then renew it in this court, is a practice we can not approve. The complaint is sufficient, and, being sufficient, the motion in arrest of judgment was properly overruled.

The special paragraph is insufficient, if for no other reason, for want of a copy of the deed of warranty from the plaintiff to the defendants upon which it is founded. The following cases are in point: Church v. Fisher, 40 Ind. 145; Laughery v. McLean, 14 Ind. 106; Woodford v. Leavenwoorth, 14 Ind. 311; Coleman v. Hart, 25 Ind. 256; Cartright v. Briggs, 41 Ind. 184; Starkey v. Neese, 30 Ind. 222.

The judgment is affirmed, at the costs of the appellants.