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65 Ind. 243

Marshall v. Stewart

Indiana Supreme Court

Decided November 15, 1878

Indiana Supreme Court · decided 1878-11-15

<p>Evidence. — Action in Separate Counts, upon Promissory Note and a Judgement thereon. — Merger.—Former Recovery. — Where one paragraph of a complaint counts upon a judgment rendered on a promissory note, and a second paragraph counts upon the note itself, to which latter count former recovery is pleaded, no objection to the admission of the note in evidence under the second paragraph can be founded on the fact that it is merged in the judgment.</p> <p>Same. — Judgment.—Foreclosure.—Execution.—Merger of Promissory Note.— In an action upon a promissory note, and to foreclose a mortgage securing its payment, against the maker and his wife, there was a finding for the amount due on the note, and judgment was rendered on the finding, against the maker personally, “ to be levied and collected without any relief,” etc. There was also a decree for the foreclosure of the mortgage, and sale of the mortgaged premises, and for execution over for any residue, but this latter clause was subsequently struck out.</p> <p>Held, that the note was merged in the judgment.</p> <p>Held, also, that the judgment was personal, that execution could properly have been issued thereon for any residue unsatisfied after sale of the mortgaged premises, and that a transcript of such proceedings and judgment is competent evidence in an action against such maker alone, on such judgment.</p> <p>Supreme Court. — Judgment of. — Petition for Rehearing. — The action of the Supreme Court upon a petition for a rehearing is the action, not of any single judge thereof, but of the court as a unit.</p>

Relies on Fletcher v. Holmes · Lipperd v. Edwards

Cited in Cyclopedic (1922)’s definition of “Merger”

Good law ✅— No negative treatment on recordhow we know

Decided 1878-11-15

How this case has been cited

Cited by 8 later decisions — most recently October 1991

8 state decisions

201878188018901900191019201930194019501960197019801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1Petition fob a beheabing.

Biddle, J.

¶2The counsel for appellant still insist, that the judgment set out in the first paragraph of the complaint is insufficient to support an action, because there is no express judgment to collect the residue, if the mortgaged property fails to pay the debt. It is true there is no such judgment over; it is also true that the whole judgment is personal. The cases cited against the opinion in this case are all cases where the judgment was upon the mortgage *248. alone, or where the proceedings and judgment were solely in rem. In such cases the judgment will not support an .-action against the person, for it is not a personal judgment. ..There is nothing in the opinion contrary to this view.

¶3The record of the judgment counted upon in the first ■paragraph of the complaint shows the finding of the court, in the following words :

“ And the evidence being heard, and the court, being sufficiently advised in the premises, finds that the defendant, _ Jasper N. Marshall, is indebted to the plaintiff on and by ;his promissory note mentioned iu the complaint, in the sum •of one thousand arid twenty-one dollars and sixty cents, principal and interest now due thereon, and in the further sum of fifty-five dollars as a reasonable attorney’s fee for . the institution of this suit.”

¶4The judgment of the court on this finding is set out in .the original opinion, and need not be repeated here; and why it is not a personal judgment, instead of a judgment in rem, does not appear upon its face, and has not been .shown to us. "We can not understand any of the authorities cited by appellant, as being in his favor; indeed, it seems to us that some of them are directly against him. Fletcher v. Holmes, 25 Ind. 458 ; Lipperd v. Edwards, 39 Ind. 165. Besides, the judgment being personal, an execution could issue without an express order in the judgment, and upon the decree the residue might be collected.

¶5The counsel for appellant urge it upon us, that,

. “In consideration of the magnitude of the question involved, we respectfully ask that this petition and argument for a rehearing be considered by the full bench.”

¶6It surely can not be unknown to the counsel that this court is a'unit, though composed of five judges, and that it decides no case, petition or motion, and does no judicial "act — not even to the formal admission of a gentleman of *249the bar to practise before it — except as a court. Such au appeal therefore is quite unnecessary.

Original opinion filed at November Term, 1878.Opinion on petition filed at May Term, 1879.

¶7The petition for a rehearing is overruled.

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