Jenkinson v. Ewing

Worden, J. This was an action commenced in September, 1859, by Ewing against Jenldnson, to foreclose a mortgage, for an amount exceeding one thousand dollars. The defendant answered in four paragraphs; to the second and fourth of which a demurrer was sustained. Trial by the Court of the issues formed upon the other paragraphs; finding and judgment for the plaintiff. The defendant appeals, and relies upon three points for a reversal of the judgment, viz., the ruling upon the demurrer to the second and fourth paragraphs of the answer, and that the sum in controversy was beyond the jurisdiction of the Court. The second paragraph was only pleaded in bar of the sum of forty dollars, and alleges, in substance, that the consideration of the notes, to secure which the mortgage was given, was a sale and conveyance to the defendant of the mortgaged premises; that the premises, at the' time of the [506] conveyance, were incumbered by a lien for taxes, to the amount of forty dollars, which the defendant has been compelled to pay, wherefore, &c. M. Jenkinson, for the appellant. This paragraph is defective for the following, if no other, reason: It does not appear that the defendant protected himself against incumbrances by any proper covenants, and for aught that appears he may have purchased subject to incumbrances, taking a mere quit claim conveyance. The fourth paragraph sets up a former recovery of judgment, in the same Cpurt, by the plaintiff against the defendant, upon the notes secured by the mortgage. That the recovery of the judgment is no bar to an action to foreclose the mortgage, is settled by the case of Hensicker v. Lamborn, 13 Ind. 468. Moreover, the paragraph in question sets up a recovery for more than a thousand dollars, at a time when the Court had no jurisdiction to that amount; hence the judgment is a nullity. The last point made, viz., that the Court had not jurisdiction of the amount here involved, has already been passed upon by this Court, vide Kiger v. Franklin, 15 Ind. 102, where it was held that the act of 1859 gives the Court of Common Pleas unlimited jurisdiction as to amount involved. There is no error in the case; hence the judgment must be affirmed. Per Curiam. — The judgment is affirmed, with 3 per cent, damages and costs.