The Peoples Savings Bank of Evansville v. Finney et al.

the judgment appealed from was rendered; and therefore it would seem that this case does not come within the letter of the statute cited.

The record of this cause, the appellant's assignment of errors thereon, and the joinder in error by the appellees, all appear to have been filed in this court on the 5th day of May, 1877; and, on the 30th day of the same month, the cause was submitted by the written agreement of the parties.

On the 28th day of June, 1878, this cause was distributed, in its order, for decision; and after such distribution, and after the appellees had notice thereof, they filed their said motion to dismiss the appeal herein, upon the ground before stated. Under these circumstances, it seems to us, that the appellees' motion to dismiss this appeal, upon the ground stated, comes too late; that, by their own previous action in the case, they had practically waived the objection now stated in their motion; and that, for these reasons, their motion to dismiss ought to be and must be overruled. In our opinion, such a motion. ought not to be sustained, unless it is made on the first appearance of the moving party, in this court, and especially so, when it appears, as it does in this case, that the parties to the record, who were not made parties to the appeal, have no interest whatever in the controversy in this court. The only controversy in this action, even in the court below, arose upon the appellees' so-called cross complaint; and the appellees, as we have seen, did not make the said F. Anton Behme and Clemens Behme, or either of them, parties to said cross complaint. The same controversy, and none other, exists in this court; and the said Behmes are not parties thereto, and have no interest therein.

The appellees' motion to dismiss this appeal, upon the ground stated in said motion, is therefore overruled. VOL. LXIII.-30

The Peoples Savings Bank of Evansville r. Finney et al.

We come now to the consideration of the questions presented by the appellant's assignment of errors in this case.

The main question, thus presented, may be thus stated: Were the facts pleaded in either paragraph of the appellees' so-called cross complaint sufficient to entitle them, or either of them, to the relief prayed for therein? The facts relied upon by the appellees, in each of the two paragraphs of said cross complaint, are substantially the same; but, as these facts are more fully and clearly stated in the second paragraph than they are in the first, we give the substance of those facts as stated in said second paragraph, as follows:

"That the note held and sued on by the appellant did not become due and payable according to the tenor and effect thereof, nor until long after the three notes held by appellees had become overdue and payable, and the appellees respectively entitled to foreclose the mortgaged premises for such non-payment of the same, because they aver, that before said note of appellant would have matured according to its tenor, to wit, on the day of February, 1876, the appellant, who was then the holder and owner of said note, by a binding agreement made with the mortgagors, and for a valuable consideration, namely, the payment of $30, as and for interest at the rate of twelve per cent. per annum, agreed to and did extend the time of the note held by appellant, down to the 1st day of August, 1875, such day of payment being afterward further extended by the appellant, from time to time, in consideration of advance payments of interest, at a similar rate, down to the 1st day of October, 1876; that during all the time from the 1st day of March, 1875, when, but for such extension and agreement, the note held by appellant would have become payable, down to the 1st day of October, 1876, the appellant absolutely debarred and restrained herself from all right to demand or enforce the payment of her note, or

The Peoples Savings Bank of Evansville v. Finney et al.

to proceed to enforce her lien against the mortgaged premises; that such extension was granted without notice to appellees and without their knowledge or consent, they being, at the time, the holders of the notes respectively. sued on by them, and that the appellee Finney had taken the two notes held by him in good faith, and for a valuable consideration, upon the representation and assurance of the appellee Long, and which Long believed to be true, that the note held by the appellant had been paid; that appellant, by reason of the premises, had waived all claims to priority, which it might otherwise have had against the mortgaged premises, and postponed its lien to that of appellees. Wherefore they pray, that their notes be first paid," etc.

We are very clearly of the opinion, that the facts thus stated by the appellees in their so-called cross complaint were not sufficient to entitle them or either of them to the relief prayed for therein.

It has long been the settled law in this State, that a mortgage given to secure the payment of two or more notes maturing at different dates must be considered as if there were as many different successive mortgages as there were of such notes, and that the holder of the note first due would have priority, and the holder of the other note or notes would come in, in the same order in which such note or notes matured. The State Bank v. Tweedy, 8 Blackf. 447; Stanley v. Beatty, 4 Ind. 134; Hough v. Osborne, 7 Ind. 140; Murdock v. Ford, 17 Ind. 52; Sample v. Rowe, 24 Ind. 208; Davis v. Langsdale, 41 Ind. 399, and Minor v. Hill, 58 Ind. 176.

In legal effect, therefore, the appellant and each of the appellees held and hold a separate mortgage on the same property, executed by the same mortgagors, at the same time. Of these separate mortgages, the appellant was the holder of the first or prior mortgage, while the appellee

The City of Goshen v. Kern.

Finney and the appellee Long severally came in afterward, in the order in which they are named.

It is very certain, we think, that the appellant did not, by reason of the facts alleged in either paragraph of said socalled cross complaint, lose its right to priority of payment out of the proceeds of the sale of the mortgaged premises. Under the law and the facts of this case, the appellees were severally mortgagees, junior in time to the appellant, and they did not and could not, by reason of the matters alleged, obtain any priority over the appellant.

In our opinion, the court below erred in overruling the appellant's demurrers to each paragraph of the appellees' so-called cross complaint, and in rendering judgment giving the appellees priority over the appellant.

The judgment is reversed, at the appellees' costs, and the cause is remanded, with instructions to sustain the appellant's demurrer to each paragraph of the appellees' cross complaint.

Opinion filed at May term, 1878.

Petition for a rehearing overruled at November term, 1878.

THE CITY OF GOSHEN v. KERN.

CITY.-Complaint for Violation of Ordinance.-A complaint for a violation of a city ordinance need not set out such ordinance either in substance or by copy, it being sufficient to describe the same by its section, number and date of adoption.

SAME.-Powers of Common Council.—Licensing Auctioneers.—Under clause 38, section 53, of the general law for the incorporation of cities, 1 R. S. 1876, p. 293, the common council of a city incorporated under such act has the power to adopt a penal ordinance, requiring an auctioneer to procure a license from the city.

SAME.-Police Regulation.-The power thus given to the common council is in the nature of a police regulation.

The City of Goshen v. Kern.

SAME.-Auctioneer Defined.-A person who sells his own goods, as well as one who sells the goods of another, at public auction, is an auctioneer within the meaning of the statute. PLEADING.—Uncertainty.—Demurrer.—Practice.—Uncertainty in a plead

ing which states sufficient facts can be reached only by a motion to make certain and not by demurrer.

SAME.-Justice of the Peace.-A complaint before a justice of the peace, which states facts sufficient to inform the defendant of the nature of the action and to authorize a judgment which will bar another action for the same cause, is sufficient.

From the Elkhart Circuit Court.

R. M. Johnson, J. D. Osborn and E. G. Herr, for appellant.

J. A. S. Mitchell, H. D. Wilson and I. H. Simmons, for appellee.

Howк, C. J.-In this action, the appellant sued the appellee, before a justice of the peace of Elkhart county, to recover a penalty for an alleged violation of a certain section of a certain ordinance of said city of Goshen.

The trial of the cause before the justice resulted in a verdict and judgment in favor of the appellant, from which there was an appeal to the court below.

In the circuit court the appellee demurred to the appellant's complaint, upon the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was sustained by the court, and to this decision. the appellant excepted. Thereupon the appellant moved the court for leave to amend its complaint, which was granted" upon the plaintiff submitting to judgment being entered in favor of the defendant for all costs taxed herein to this date," November 5th, 1875.

The appellant objected and excepted to any judgment being rendered against it for costs, except the costs of that term of court, and moved the court for permission to amend its complaint without being subjected to a judgment for costs, except the costs of that term, which mo