Gilbert v. Southern Indiana Coal & Iron Co.

Worden, J. The appellee, the Southern Indiana Coal and Iron Company, recovered a judgment in the Vanderburgh Circuit Court against the Evansville Rolling Mill Company, a manufacturing corporation existing under the laws of this State, upon the endorsement of a promissory note. An execution having been issued upon the judgment, and returned unsatisfied, this action was brought by the appellee, against the appellants as stockholders of the [523] rolling mill company, to recover the amount of the judgment against them personally. Some of the defendants below appeared and filed demurrers to the complaint for want of sufficient facts, which were overruled, and exceptions were taken. Others made default. Such further proceedings were had as that judgment was rendered for the plaintiff. We believe all of the defendants below, against whom judgment was rendered, have assigned errors, calling in question the sufficiency of the complaint, either upon the' ruling below on the demurrers, or that the complaint does, not state facts sufficient to constitute a cause of action, except three. These three are John A. Haney, Eraneis J. Reitz, and W. H. Blunt; and they have appeared and declined to join in the appeal. The complaint clearly did not state facts sufficient to constitute a cause of action. The case falls within that of Wood v. Harrison, 50 Ind. 480, which was followed in Burkam v. Fitch, 51 Ind. 375. The judgment below, except as to those above named, who have declined to join in the appeal, will have to be reversed. But the appellee makes a special point as to two of the defendants below, viz.: Jonathan S. Jaquess and Samuel M. Archer. The following is the state of the record, so far as these two persons are concerned: Jaquess appeared in the court below and filed his demurrer to the complaint for want of sufficient facts, which was overruled, and he excepted; but he was afterward called and defaulted. Archer did not appear, but judgment was taken against him by default. Upon the first submission of the cause to this court., there was an assignment of error upon the rulings of the court upon the demurrers to the complaint, but none that the complaint did not state facts sufficient, etc. [524] On the 21st of February, 1878, the cause was decided by this court, reversing the judgment as to those who had .appeared and demurred (except Jaquess) and affirming it .as to those against whom the default was taken, on the ground that the record presented no question as to them. By an inadvertence, we overlooked the fact that Jaquess had appeared and demurred, and seeing that he had been called and defaulted, the judgment was affirmed against him, on the supposition that the record presented no question as to him. Archer was named in the original assignment of errors, .and the judgment was affirmed against him on the ground .-above stated. Afterward, on the petition of some of the defendants .against whom the judgment had been affirmed, not including Jaquess or Archer, a rehearing was granted, on the ground that the petitioners were not named in the assignment of errors and had not joined in the appeal. After this, Archer, with others, asked and obtained leave do assign errors, which he has. done. The appellee has moved to set aside the order granting leave to assign error, and the assignment thereof, on the ground that the rehearing only operated in favor of those .asking it, and that the original judgment of affirmance stands as against the others. This motion must be overruled. "When the rehearing was granted, the entire judgment of this court was thereby set aside and vacated. As was said in the case of Booher v. Goldsborough, 44 Ind. 490, 496, “ The rehearing was granted generally, and not as to particular points. The granting of the rehearing had the effect to set aside our judgment reversing the judgment of the court below, and left the latter judgment in force. The case went back upon the docket, and was again submitted, and has again reached the court in the regular order of the distribution of causes. [525] The cause, therefore, comes before us for examination and decision as though it had never been considered and decided by us.” . When the rehearing was granted, the case went back upon the docket for re-submission; and it was entirely proper to grant leave to amend, or to make an entirely new assignment of error. This probably might have been done without leave. The judgment below, except as to John A. Haney, Brands J. Reitz and W. H. Blunt, is reversed, with costs, and the cause remanded, for further proceedings in accordance with this opinion. Note. — Howk, C. J., having been of counsel in the cause, was absent when it was considered.