Tachau v. Fiedeldey

Morris, C. This action was brought by the appellants to review a judgment rendered in the superior court of Marion county, on the 3d day of July, 1876, in favor of the appellee John O. Fiedeldey, against appellants and others, for errors apparent upon the face of the proceedings sought to be reviewed. It appears from the complaint that the appellant, on the 2d — 55 — day of May, 1874, obtained a judgment against Morgan B. Shaw and Frank S. Newby, in the superior court of Marion county, for the sum of $732, and' that execution was issued thereon, returned nulla bona. On the 2d day of June, 1874, they, the appellants, commenced an action in said superior court, against Morgan B. Shaw, Frank S. Newby, Victoria Shaw, William A. McCormick and Anderson Brewer, to set aside as fraudulent certain conveyances of real estate, alleged to have been bought by Morgan B. Shaw and Frank S. Newby, as partners, with their firm assets, of William A. McCormick, and which they caused McCormick to deed to Victoria, the wife of Morgan B. Shaw, to prevent the same from being reached by the creditors of said Shaw and Newby, and especially for the debts of Tachau and Wehle, and that afterwards Morgan B. Shaw and wife conveyed it to Anderson Brewer without consideration, in furtherance of the same fraudulent purpose. Newby, the partner of Shaw, in his answer, admitted the truth ofthe complaint; and, on the 11th day of January, 1875, the court rendered judgment, finding said conveyances fraudulent, that the real estate was the real estate of M. B. Shaw & ■Co., and directing the sheriff to sell it, and out of the proceeds to satisfy Tachau and Wehle’s debt, and to bring any excess into court to await its order. On the 3d day of April, 1875, the real estate was sold under this judgment, and bid in by Tachau and Wehle for their debt and costs, and a certificate of purchase issued to them. On the 2d day of June, 1874, the appellee John O. Fiedeldey obtained judgment for the sum of $658.26 againstMorgan B. Shaw and Frank S. Newby as a firm, in the superior court of Marion county, and execution having been returned nulla bona, on the 5th of December, 1874, Fiedeldey commenced an action in the superior court of Marion county, against Morgan B. Shaw, Frank S. Newby, Victoria Shaw, William A. McCormick and Anderson Brewer, to set aside as fraudulent the same conveyances that appellants Tachau and Wehle had — 56 — commenced their action to set aside as fraudulent in June of the same year. Fiedeldey’s complaint was in two paragraphs. On the 3d day of June, 1875, after appellants had obtained their judgment setting aside said conveyances as fraudulent, and after they had had a sale thereunder and réceived their certificates of purchase, Fiedeldey filed a third paragraph of complaint, in which he recited the facts recited in the first and second paragraphs, and, having made appellants parties to his-action, in this third paragraph he also sets up that appellants had obtained a judgment setting aside the same conveyances he was seeking to set aside and had a sale thereunder, and received a certificate of purchase for the real estate in controversy ; and in addition to asking that the conveyances attacked in the first and second paragraphs might be set aside, he also asked that appellants’ sheriff’s sale of the land might be set aside for irregularities specified in this third paragraph, and that the sheriff be enjoined from delivering a deed on the certificate of purchase which he had given to appellants. In that action these appellants were served by publication and defaulted. On the 3d day of July, 1876, more than a year after appellants had obtained their judgment setting aside the conveyances of Shaw, Newby and others as fraudulent, the court rendered judgment, setting aside as fraudulent the conveyances it had already set aside as fraudulent in appellants’ action, and, in addition thereto, it set aside the sheriff’s sale which appellants had had on their judgment, and enjoined the sheriff from delivering appellants a deed on their certificate of purchase. This judgment provided that the real estate in controversy should be. sold as the real estate of Shaw and Newby, and that the proceeds of the sale should be applied to-the payment of judgments against Shaw and Newby in the order in which they had been taken, to wit: William B. Maddox, April the 7th, 1874, $1,144; Charles Tachau et ah, May the 2d, 1874, $732; J ohn O. Fiedeldey, June 2d, 1874, $658.26. The superior court in general term, on the 5th of March, 1877,, — 57 — modified this judgment, by directing that Fiedeldey be first paid out of the proceeds of the sale of said real estate, because of his superior diligence in first bringing his action to subject said real estate to the payment of the debts of Shaw and Newby. Copies of the pleadings, orders and judgment in the case sought to be reviewed, were filed with the complaint. The error assigned in the complaint of the appellants is, that the court, in the action sought to be reviewed, erred in ordering Fiedeldey’s judgment to be first paid out of the proceeds of the real estate adjudged liable to be sold to pay the debts of Shaw and Newby; that the fraudulent conveyances, by which Shaw and Newby had attempted to place said real estate beyond the reach of their creditors, were first set aside, and declared fraudulent in the suit instituted in said superior court by the appellants; and that, as this fact appeared in Fiedeldey’s complaint in the suit commenced in said court by him for the same purpose, and sought to be reviewed in this action, the court should have held that the appellants were entitled to priority, and directed that their judgment against Shaw and Newby be first paid out of the proceeds of the sale of said real estate. The prayer is, that the judgment be so9 modified and corrected as to give the appellants priority over the other creditors of Shaw and'Newby. To this complaint there was a demurrer, which was sustained. The cause was taken by appeal to the general term. The sustaining of the demurrer was assigned as error; the judgment in special term was affirmed; the error assigned here is the affirmance in general term of the judgment in special term. To the action sought to be reviewed, the appellants made default. It does not appear that any objection was made by them to the judgment rendered in that case. They were not present at the time, nor is it shown that they have at any time since, by motion or otherwise, asked the court below to correct the errors complained of. The complaint to review the judgment is the first step taken to correct the alleged error. — 58 — The proceedings under review were had against the appellants upon their default. No objection to them was made or exception taken. Can the appellants avail themselves of the alleged error by a complaint to review ? Can they, by filing such a complaint, malm the action of the court below erroneous, without objection or exception, and without giving the court an opportunity to correct the error, if there was any ? A complaint to review a judgment for error apparent upon the face of the proceedings is, in effect, the same as an appeal to this court. No error in the court below, not available on appeal, can be reached or brought before the court on a complaint to review. Barnes v. Wright, 39 Ind. 293; Barnes v. Bell, 39 Ind. 328; The Indianapolis Mutual F. Ins. Co. v. Routledge, 7 Ind. 25. In the last case, the court says: “ That the mode of procedure and judgment, on review, in the circuit court, is in effect the same as on appeal in this court.” Hardy v. Chipman, 54 Ind. 591; Richardson v. Howk, 45 Ind. 451; Dunkcle v. Elston, 71 Ind. 585; Searle v. Whipperman, 79 Ind. 424. These cases show that a proceeding to review a judgment for error apparent upon the face of the proceedings is the same in effect as an appeal, and that no error of the court below is available in proceedings to review that is not available on appeal ; that an error deemed to be waived on appeal, will be regarded as waived on review. In the case of Barnes v. Wright, supra, the court says: “ Where the defendant has been brought into court, and has suffered a judgment to be rendered against him by default, he cannot appeal to this court for the correction of any supposed error in the judgment, without having first applied to the court below for the correction.” In this case, the appellants, not having objected or complained of the alleged errors in the court below, must be deemed to have waived them. The priority given to Fiedeldey in the judgment under review was not, in the absence of any objection or exception, erroneous. Such a j udgment would be binding and valid if assented to by — 59 — the parties. No objection haying been at any time made, such assent will be presumed. Richardson v. Howk, supra; Iglehart’s Pl. and Pr. 452. The complaint does not show that there is any available ■error in the judgment and proceedings sought to be reviewed. The judgment below should be affirmed. Per Curiam. — It is ordered, upon the foregoing opinion, that the judgment below be affirmed, at the costs of the appellants.