Easterday v. Joy

¶1Suit by the appellant to recover land. lie relies upon a sheriff’s deed, &c. The defendants claim title as the vendees of the execution-defendant.

¶2One Hubbard recovered a judgment against Jonathan Joy, before a justice of the peace of Wabash county. Execution was issued thereon, and returned no property found, &c. The plaintiff filed a transcript and affidavit in the office of the clerk of the Court of Common Pleas of said county of Wabash.. An execution was issued to the sheriff of Miami county, who levied the same upon the land in controversy, and sold it to said appellant. The complaint avers that the defendants purchased said land of Jonathcm Joy, whilst said writ was in the hands of the sheriff, and after the same had been levied on said lands.

¶3The defendants filed an answer of nine paragraphs; but before considering any question that may arise upon them, we are asked to pass upon the special, written finding of the Court upon a point on which the Court appears, so far as the record shows, to have decided the case.

¶4It was set up in the answer that the said Jonathan Joy was not, at the time of the rendition of the judgment by the justice, &c., a resident of Wabash county, but was a resident of Miami county, and did not appear to said action. A demurrer was overruled to that portion of the answer.

¶5The plaintiff replied, first, by a denial; second, by pleading the judgment of the justice with the proceedings, substantially.

¶6The Court found as follows: “The Court finds that Jonathcm Joy, the execution-defendant, was not a resident of Wabash county, at the time of the commencement of *373the suit in which the judgment was rendered; and that said judgment was, therefore, a nullity, and the sheriff’s sale made under it conveyed no title. The above is the evidence in the above cause, and the conclusion of law thereon.” [Signed by the judge.]

¶7Upon this finding, the plaintiff moved for a new trial, which was overruled, and a judgment rendered for the defendants.

¶8There were several questions in the case, other than that arising upon the issue made as to the residence of the.defendant in the judgment, and the plaintiff contends that this record shows that the Court did not pass upon any of said questions, or issues, except the single one as to the place of residence of the defendant in said judgment; and that issue was immaterial, and did not authorize the Court to render final judgment for the defendant.

¶9There does not appear to have been any finding of a general character; but that the judgment was based upon the finding above set forth; which was upon the issue formed on the sixth paragraph of the answer, averring that Joy was a resident of Miami county, and that said judgment before the justice, was obtained in Wabash county, and that said Joy did not appear, &c.; setting forth, with some particularity, the proceedings in said case. It is not averred that Joy had not been served with process, even if he could thus have contradicted the return of the officer. See Westcott v. Brown, at the last term (1).

¶10The answer was not sufficient. Maxwell v. Collins, 8 Ind. R. 39. The special finding did not authorize the conclusion arrived at. The judgment must be reversed.

¶11The judgment is reversed with costs. Cause remanded, &e.