Cassel v. Scott

17 Ind. 514, 1861 Ind. LEXIS 509

• Court: Indiana Supreme Court
• Decided: December 14, 1861
• Status: Published

Opinion

Davison, J.

This was a suit for an injunction. The appellant was the plaintiff, and the appellees were the defendants.

The complaint alleges these facts: At the Spring term, 1856, one Gabriel!a Ilunnieutt recovered a judgment in said Court against Oassel, the plaintiff in this action, for one thous- and dollars, which judgment was rendered upon certain bonds filed by the plaintiff in the auditor’s office of Wayne county, under the provisions of an alleged act, entitled “An Act to regulate the retailing of spirituous liquors, and for the suppression of the evils arising therefrom. Approved Mareh 4, 1853; ” which act the said Oabriella alleged, and the said Court held, to be valid and operative; but which act the plaintiff avers, was, has been, and now is, unconstitutional and void, in consequence whereof the judgment rendered upon said bonds, was, and still is, void and of no effect whatever. It is averred that Andrew F. Seott, the clerk of said Court, having been ordered to do so, issued an execution on said judgment, and delivered the same to Joseph S. Stidman, the sheriff, who by virtue of said execution has levied on certain property of the plaintiff, (describing it,) which he, the sheriff, has advertised for sale on Mareh 25, 1859, and will sell the same on that day unless restrained by order of this Court.,

The relief prayed is, that upon final hearing the sheriff be enjoined from selling or keeping possession of said property under the execution, and. that Seott, the clerk, be perpetually enjoined from issuing any other or further execution upon said judgment, &c., and that other relief be granted, &c.

Appended to the complaint, there is an affidavit of the plaintiff alleging the matters and things therein stated to be true, c%c. The record shows that the plaintiff, having given the notice and filed the undertaking prescribed by the statute, moved the Court for -a restraining order, in accordance with the prayer of the complaint, to operate during the pendency of the suit; that the defendants appeared in pursuance of the notice; but the Court overruled the motion, refused the order, and the plaintiff excepted, and thereupon the defendants demurred to the complaint, their demurrer was sustained, and the suit dismissed, &c. For a reversal, it is argued that the act of 1853, referred to in the complaint, is in conflict with the Constitution, and that the judgment on the bonds, having no foundation, save in that act, is a nullity. The first branch of the argument is correct. We have decided the act in question to be unconstitutional. Mershmeir v. The State, 11 Ind. 482. It does not, however, follow that the judgment is a nullity. It was founded upon the bonds, and not on the act, and of the suit upon them, the Circuit Court had full jurisdiction. The act being void, the bonds are simply unsupported by any valid consideration; and this being the case, the judgment rendered upon these bonds, though it may be deemed erroneous, is not void, and must operative until, in accordance with the ordinary rules of procedure, it is reversed by a court of error. No authority has been cited, nor do we know of any, in support of the position assumed by the appellant. In our opinion, the judgment, as it now stands, is in full force and operative, and the result is, the motion for the restraining order was correctly overruled.

C. II. Burehenal and M. Wilson, for the appellant. Julian, Morton and Mibbey, for the appellees.

Per Curiam. — The judgment is affirmed, with costs.