Walker v. Heller

On Petition for a Rehearing.

Niblack, C. J.

— Theappellants ask for a rehearing in this; 'cause, and, in support of their petition, reiterate their claim, that the Hancock Circuit Court acted illegally arid erroneously ' in permitting the appellee to dismiss his former action, after its finding had been announced, and that the court below ought to have held the proceedings in that action to have been erroneous when they were put in evidence-in this case. This reiterated claim of the appellants entirely ignores the difference between a direct attack upon a judgment by an appeal to this court, and a collateral attack upon it when offered in evidence in another action.

No principle of law is better settled than that a judgment can not be attacked collaterally because of error simply in the proceedings upon which it was' rendered. Evans v. Ashby, 22 Ind. 15.

The court below had no authority to enquire into the regularity of the proceeding in the former action, further than to ascertain that the Hancock Circuit Court had jurisdiction of the subject-matter of, as well as the parties to, the.action. This latter court, having had jurisdiction of the subject-matter of, and the parties to, that'action, the judgment rendered in it was obligatory upon the parties when it was-read in evidence in this cause, and the fact, that such judgment may have been since reversed by this court, does not relieve it of its obligatory character at -the time it was so-read in evidence. This court had authority to enquire into *53the regularity of the proceedings of the Hancock Circuit Court, upon a direct appeal from those proceedings, but, for the reasons given, the court below had no such power.

When those proceedings were read in evidence, it then be■came the duty of the court below to give a construction to the judgment rendered upon them. It was the final judgment, and not some precedent finding or action of the ■court, that constituted the adjudication between the parties to that action. The judgment did not purport to be, and ivas not, a judgment upon the merits of the action. Hence, we are still unable to see that the court below erred in the •construction it gave to it.

There is, therefore, an essential- difference between the •question presented in this case upon the proceedings in the former action, and that presented to this court upon an appeal from those proceedings. See Walker v. Heller, 56 Ind. 298.

If the appellant Walker, either before answering or going into the trial of this cause, had made a proper application for a stay of proceedings until the appeal to this court in the former action should have been disposed of, he would have been entitled to such a stay of proceedings, but it is not •shown that any such an application was made, and no question of that kind is presented by the record.

The application for a stay of proceedings, referred to in the original opinion, was not made until after the verdict was returned against the appellant Walker, and was, in any «event, too late to be available.

The petition for a rehearing is overruled.