State Ex Rel. Robinson v. Boniecki

Starr, J. This is an action by the appellants to mandate the appellee to set aside a certain judgment rendered by appellee by default against the relators in favor of Saint Nicholas American Russian Orthodox Church for possession of certain real estate and damages for the wrongful detention thereof. Appellants base this action to set aside said default on § 5-905, Burns’ 1933, claiming that said section is mandatory when the provisions thereof are complied with. A motion has been filed by the appellee to dismiss the appeal wherein it is made to appear that since the submission of this case the following release and satisfaction of said default judgment, by authority of said Church, has been duly entered and attested on appellee’s docket where the aforesaid judgment was entered: “April 16, 1945—the above and within judgment and costs are hereby fully paid, released, and satisfied. Saint Nicholas American Russian Orthodox *418 Church by Sachs & Efron, its attorneys, by Frank S. Efron—Attest: Stephen J. Boniecki, J. P.” Relators, by their counsel, have filed counter-affidavits in opposition to said motion to dismiss, wherein it appears that they have not paid anything on said judgment, but that, after paying the rent in full, they vacated the premises involved in the default judgment, and that said vacation was not in satisfaction of said judgment, but was voluntary, because they had purchased a home. From the foregoing uncontroverted facts, it is our opinion that the question involved in this action has been rendered moot. The relators have voluntarily vacated the premises and the Church has satisfied the judgment as fully as it could so satisfy the same. This entry of satisfaction, even though there was no money consideration for the same, is binding upon the said Church. Monnet v. Hemphill (1886), 110 Ind. 299, 11 N. E. 230. Under the circumstances the appeal should be dismissed unless some question of general public interest is involved. There is no such question in this appeal. 132 A. L. R. 1185, note. The appeal is dismissed. Note.—Reported in 61 N. E. (2d) 176.