Hall v. Durham

9 N.E. 926, 109 Ind. 434, 1887 Ind. LEXIS 171

• Court: Indiana Supreme Court
• Decided: January 27, 1887
• Docket: No. 12,782
• Status: Published

Opinions

Niblack, J.

Some time previous to the September term, 1884, of the Montgomery Circuit Court, William IT. Durham, the appellee in this case, commenced an action in that court against John R. Hall and Margery Hall, the appellants in this appeal, to quiet his title to a tract of land in Montgomery county.

At the term of court above named, the defendants in that action failed to appear, and, it being shown that summons-had been served upon them more than ten days before the first day of the term, a judgment quieting the plaintiff’s title to the land described in his complaint was entered against the defendants as upon default.

In March, 1885, this action, which was for the recovery of the possession of the tract of land to which the title had been quieted as above stated, was commenced by Durham against the same defendants, and a trial resulted in a verdict and judgment in favor .of Durham.

At the trial Durham offered in evidence the complaint and judgment in the action prosecuted by him as above to quiet his title, but the defendants objected:

First. Upon the ground that the complaint was not sufficient to support such a judgment.

Second. That the judgment had been changed in a material respect after it was first entered, without their knowledge or consent.

The court heard evidence in regard to the alleged change in the judgment, and, evidently coming to the conclusion that, if any change was made in the judgment after it was first entered by the clerk, it was before it was signed by the judge, admitted both the complaint and judgment in evidence.

The reasonable inference from the evidence which the court heard was, that the judgment so read in evidence was entered upon the proper order-book of the Montgomery Circuit Court; that it appeared to have been entered in the usual course of proceeding, and was signed by the proper judge. Under such circumstances the objection to the reading of the judgment in evidence was a merely collateral attack on the validity of the judgment, as between the parties, which was regular on its face and of a class which the court had jurisdiction to render. Such an attack was not permissible, and hence the court did not err in admitting the judgment in evidence.

As to the sufficiency of a complaint to quiet title, see the case of Kitts v. Willson, 106 Ind. 147.

Filed Jan. 27, 1887.

John R. Hall, one of the defendants, was called as a witness, and it was proposed to prove by him that all the matters in difference between the parties concerning the real estate in controversy had been compromised and adjusted, but there was no statement as to the manner in which the alleged compromise and adjustment had been made, and the evidence thus proposed was excluded. There was no error in this ruling. Nothing was shown from which the materiality of the proffered evidence could be inferred.

It is claimed that the court, after the evidence was concluded, instructed the jury to return a verdict for the plaintiff, which they accordingly did, and that this was erroneous because of some alleged conflict in the evidence on some questions raised at the trial.

The clerk, after noting on the order-book the empanelling of the jury, proceeded as follows: “And the jury, having heard the evidence and argument of counsel, are, by the order and direction of the court, required to return the following verdict:” then setting out the verdict in full, which, as has been stated, was in favor of the plaintiff. But there is no mention of these proceedings in the bill of exceptions. If the jury were required to return á particular verdict, it was necessarily through the medium of an instruction given them by the court, and a question could only be reserved upon such an instruction by bringing it into the record in some lawful manner. The entry of the clerk, set out as above, did not take the place of a bill of exceptions, and consequently presents no question for our consideration. R. S. 1881, section 650; Kesler v. Myers, 41 Ind. 543; Berlin v. Oglesbee, 65 Ind. 308; Olds v. Deckman, 98 Ind. 162; Redinbo v. Fretz, 99 Ind. 458.

The record presents no available error, and in consequence the judgment is affirmed, with costs.