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73 Ind. 46

Walker v. Heller

Indiana Supreme Court

Decided November 15, 1880

Indiana Supreme Court · decided 1880-11-15

<p>.Practice. — Assignment of Error. — Change of Venue. — New Trial. — Alleged error in granting a change of venue must be assigned as cause for a new trial, to present such question on appeal to the Supreme Court.</p> <p>Instructions. — Equivalent of Material Allegations.” — An instruction, that the plaintiff was entitled to recover,' “unless the defendant has proved, * * * in substance, the allegations in one or more paragraphs of his answer,” is fairly equivalent to saying that, to constitute a defence, it was only necessary to prove the material allegations in some one of the paragraphs of answer, and was, therefore, sufficient.</p> <p>'Save. — Partial Instruction Supplemented by Another. — Where an instruction given states the law correctly as far as it goes, but stops short of the full statement of the law applicable to the particular question involved, and such instruction is supplemented by another covering the point omitted, no error is committed.</p> <p>Pormer Adjudication. — Lis Pendens. — Judgment on Dismissal. — Evidence. — Appeal.—Judgment. Effect of Reversal of. — Collateral Attack. — In an action on a promissory note, record evidence was introduced which showed that a previous suit had been instituted, on the same note, by the plaintiff against the defendants, the makers, M. and W.. wherein M. made default and W. made defence, and that the issue formed therein was submitted to the court for trial, and that, after hearing the evidence, the court took the cause under advisement; that, on the next day, the plaintiff, by leave of court, dismissed such action, without prejudice, and thereupon judgment was rendered against the plaintiff for costs, from which W. had appealed to the Supreme Court.</p> <p>.Held, that such record did not establish the pendency of a previous action on the same note, but showed a final judgment, which was in full force at the time of the trial.</p> <p>.Held, also, that the only effect of such appeal was to stay execution on the judgment, and that, in other respects, the judgment was binding upon the parties to it during the pendency of the appeal.</p> <p>Held, also, that such record evidence did not show a former adjudication of the subject-matter of the subsequent action.</p> <p>Held, also, that it was the duty of the court to construe such record evidence, and that it was not error for the court to instruct the jury that such evidence was not sufficient to prove either a former adjudication or the pendency of a previous action on such note.</p> <p>JHeld, also, that such judgment of dismissal, though made after an announcement, by the court, of its finding, could not be collaterally attacked, and that the fact that it may have been since reversed, does not divest it of the obligatory character it had at the time it was offered in evidence.</p> <p>.Same. — Stay of Proceeding. — Restraining Order. — If, in such action, W. had, either before answering or going into trial, made a proper application for a stay of proceedings until the appeal in the former action had been determined, he would have been entitled thereto; but, after verdict against him, such application was unavailable.</p>

Relies on Evans v. Ashby · Walker v. Heller

Good law ✅— No negative treatment on recordhow we know

Decided 1880-11-15

How this case has been cited

Cited by 18 later decisions — most recently May 1935

18 state decisions

80188018901900191019201930decided

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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¶1On Petition for a Rehearing.

Niblack, C. J.

¶2— 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.

¶3No 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.

¶4The 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.

¶5When 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.

¶6There 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.

¶7If 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.

¶8The 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.

¶9The petition for a rehearing is overruled.

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