Miller v. Evansville National Bank

On Petition for a Rehearing.

Hammond, J. —

Counsel for appellee insist that the above decision is in conflict with Butler University v. Conard, 94 Ind. 353. We do not think so. In that case the complaint was in two paragraphs; the first to foreclose a mortgage upon real estate, and the second to recover possession of the same real estate. The answer was by denial, and by setting up, and q^king for the foreclosure of, a tax-lien claimed to be paramount to the plaintiff’s mortgage. The defendant also filed a cross complaint, in which he claimed to own the land in controversy, and asked to have his.title quieted. The find*278ing and judgment were for the plaintiff as to its mortgage and for the defendant upon his tax-lien, giving, the latter priority over the former. But there was no finding or judgment for the plaintiff as to its claim for possession, nor for the defendant upon his cross complaint. It was held that the plaintiff was not entitled, as of right, to a new trial. The court said: “We think * * that the true rule is, that where a cause of action to quiet title to, or to recover possession ofj real estate is improperly joined with a cause of action in which a new trial as of right is not allowable, the law as to new trials relating to the latter cause of action should govern, and that a new trial in such case, as a matter of right, ought not to be granted.' A different rule would place it in the power of parties in all cases to extend the statute, * * to actions in which it was not intended to apply.”

The rule stated is correct as applied to a case of misjoinder of causes of action where the judgment, as in that case, is upon a cause in which a now trial as of right is not authorized under the statute, for a different rule, as was there said, would place it in the power of parties to extend the application of the statute providing for new trials, without cause, to cases in which it never was intended to apply. But if, in that case, there had been judgment for the plaintiff upon its claim for possession, or for the defendant upon his cross complaint, there can be no doubt that a new trial as of right, might have been properly granted.

In the case now under consideration the plaintiff sought, in its complaint, to set aside certain alleged fraudulent conveyances, and to quiet its title to a part of the lands therein described which it had, in part satisfaction of a judgment, purchased at sheriff’s sale, and also to subject other real estate, embraced in said conveyances, to the payment of the residue of its said judgment. As both causes of action grew out of the same transaction, namely, the alleged fraudulent conveyances, and as equitable relief was sought in each cause, it may be doubtful whether there was a misjoinder of causes of ac*279tion. If there was no snch misjoinder, the appellants were entitled to a new trial, as a matter of right, even under the appellee’s construction of the rule announced in Butler University v. Conard, supra. But conceding, without deciding, that appellee’s complaint improperly joined two causes of action, the effect of the judgment in favor of the appellee was to quiet its title to real estate as well as to subject lands to the payment of the residue of its judgment. We think the case falls within the provisions of section 1064, R. S. 1881, and that the appellants were entitled to a new trial as a matter of right.

Filed Jan. 2, 1885.

The petition for a rehearing is overruled.