Verden v. Coleman

23 Ind. 49

• Court: Indiana Supreme Court
• Decided: November 15, 1864
• Status: Published

Opinion

Per Curiam.

The complaint, in this case, alleges that Coleman, who was the plaintiff, at the March term, 1856, recovered a judgment, in said Circuit Court, against Verden, who was the defendant, for $3,134.86, together with a decree of foreclosure of a mortgage, all which, etc. That the defendant appealed from said judgment to the Supreme Court of Indiana, and from thence removed the cause, by writ of error, to the Supreme Court of the United States; in which several courts proceedings have been duly had, the cause finally determined, and the original judgment and decree certified, duly affirmed; but before the same was accomplished and done more than five years from the date of the judgment and decree had elapsed; that said judgment and decree remain wholly unpaid as to principal, interest, and cost. Wherefore the plaintiff prays that the court will order and direct that he have execution on said judgment and decree to enforce the collection thereof, and that the same be collected without relief, etc., according to the stipulations in the note and mortgage upon 'which the judgment and decree are founded, etc. The complaint is duly verified by affidavit. Defendant demurred, but the demurrer was overruled, and he excepted. It is.said in the appellant’s brief that the complaint was filed to correct a decree of foreclosure, and that that pleading is defective, because the decree sought to be corrected was not filed as a part of it. This, it will be seen, is a mistake. The complaint was not filed to correct the decree, but to procure an order for an execution. Eor that purpose the decree, or a copy of it, was not an essential part of the complaint, because the proceeding was not an original suit, but, in effect, a mere motion to obtain leave of the court to have execution on a judgment set forth upon its own records.

D. Mace, for appellant.

Judgment affirmed, with costs, etc.