Scanlin v. Stewart

On Petition foe a Reheaeing.

McCabe, J.

A very earnest petition for a rehearing is presented in this case, supported by two very extensive and elaborate briefs, on behalf of the appellant.

The points mainly relied on for a rehearing are: that we erred in holding that the ruling of the trial court in overruling a demurrer to the amended cross-complaint of appellee Crum was immaterial, because the same question was presented on the special finding of facts and conclusions of law thereon, and that the conclusions of law were not supported by the facts found. In other words it is contended that there were not facts enough found to warrant any relief under the - cross-complaint, though all the facts alleged in the cross-complaint are found in the special finding; and that, we may remark, is a good ground for attacking the conclusion of law in favor of the cross-complainant. And that is the reason why the error, if any there was in overruling the demurrer to such cross-complaint, was harmless and immaterial. A correct declaration of the law arising upon the facts found would correct and cure any error in overruling the demurrer to the cross-complaint for want of sufficient facts. This rule is so well grounded in good reason, and sanctioned by such a long line of decisions *581of this court cited in the original opinion, that we are not inclined to depart from it; nor is it true, as contended by appellant’s learned counsel, that those cases are not -in point. There is a large number of other cases in this court to the same effect.

The complaint sought a foreclosure of a vendor’s lien on a building. The cross-complaint set up that Crum had secured a lien on the building by the levy of an execution issued on a judgment recovered before a justice of the peace; and the fact that appellant claims ought to have been, but was not, alleged in the cross-complaint, and ought to have been, but was not, found in the special finding, and without which the conclusion of law in Crum’s favor was unsupported and erroneous, is that the justice who rendered the judgment had jurisdiction. In pleading a judgment or decision of a court or officer of special jurisdiction, it is sufficient to allege generally that the judgment was duly given or made. If the allegation be denied, the facts conferring jurisdiction must be proved on the trial. 1 R. S. 1894, section 372; R. S, 1881, section 369.

As to whether the cross-complaint 'stated facts sufficient without alleging that the justice by whom the judgment was rendered had jurisdiction, or that the judgment was duly given or made; and whether the special finding of facts was sufficient to warrant the conclusion of law in favor of the cross-complainant, without a finding that the justice had jurisdiction, might have made an interesting and important question for our consideration and decision had it been presented on the original hearing of the cause.

After carefully reading appellant’s brief on -the original hearing, of nearly thirty pages of closely written matter, we fail to find that the question of the jurisdiction of the justice of the peace was even hinted at there*582in. From this fact it is more than probable that no such question was made or thought of in the trial court. Appellant does not seem to have thought that there was anything in that point at the original hearing here, though he now urges it with two elaborate briefs citing a startling array of authority. But we must decline to consider them, because it is thoroughly settled by this court that it is too late to present a question for the first time in this court on a petition for a rehearing. Yater v. Mullen, 24 Ind. 277; Heavenridge v. Mondy, 34 Ind. 28; Pittsburgh, etc., R. W. Co. v. Ruby, 38 Ind. 294; Graeter v. Williams, 55 Ind. 461; Union School Tp. v. First Nat'l Bank, etc., 102 Ind. 464.

The petition is, therefore, overruled.

Filed Oct. 17, 1894.