chattel mortgage to the Capital National Bank was executed prior to the date shown upon its face, and that it had not been recorded within 10 days of the trial date of its execution, and was, therefore, void as to the other creditors, and entitled to no preference. Motion and demurrers were addressed to said petition, and overruled, and a trial was had upon the issue tendered by said petition, which trial resulted in a finding and judgment in favor of the Capital National Bank that said chattel mortgage was duly and validly executed on the day of its date, and constituted a preference in favor of said bank. To said finding and judgment said Rheitman & Schulte and said receiver excepted, and 60 days were given to file bills of exceptions. Within the time allowed, a bill of exceptions was filed, making the evidence a part of the record. From this judgment of the Marion superior court, rendered in special term, said Rheitman & Schulte and said receiver appealed to the general term, assigning as error in said court the action of the "special term in allowing the claim of the Capital National Bank in the sum of $10,151.20 as a preferred claim, and ordering the same paid out of the funds in the hands of the receiver." The general term affirmed the judgment of the special term, from which affirmance this appeal is prosecuted by said Rheitman & Schulte and said receiver, and the only error assigned is "the action of the superior court of Marion county, Indiana, in general term, in affirming the judgment of the special term of said court upon the intervening petition of said Rheitman & Schulte." Upon the argument of counsel for appellants, we are asked to weigh the evidence, and consider, in connection therewith, the implied admission of the Capital National Bank in its demurrer to the intervening petition, and to conclude that the finding and judgment of the special term were erroneous, and that they should have been reversed in general term. It will be observed that the trial court had no opportunity, upon motion for a new trial, motion to modify its judgment, or other proceeding, to correct its error, if any had been committed. It will be observed also that the assignment of error made in this court presents but a general exception to the judgment of the trial court. While the attack upon the validity of the mortgage and upon the prior judgment allowing the claim of the Capital National Bank was informal, and by a petition filed in the cause in which the receiver was appointed, we know of no rule of practice under which the general assignment of error made in this court can be justified. In Hormann v. Hartmetz, 128 Ind. 353, 27 N. E. 731, it was said: "Objections to a judgment or decree cannot be successfully made for the first time on appeal. The groundwork must invariably be laid in the trial court by specific objections presented by a motion to modify, or in some other appropriate method. It is a principle of procedure of wide sweep that specific objections must be presented to the trial court, and so presented as to direct attention to the defects or errors, and enable the trial court to review them, and, if need be, to correct them." Many cases are cited in support of the conclusions stated, and many more might be cited. If the general assignment of error made in this case would permit an inquiry into the weight of the evidence, we are unable to observe why a motion for a new trial would even be necessary to bring in review questions upon the evidence, or why any question that might be possible in a case could not be made by the general assignment that the trial court erred in its judgment. There being no error in the record, the judg ment of the superior court in general term is affirmed. (140 Ind. 439) DAVIS v. TAYLOR et ux. (Supreme Court of Indiana. Jan. 29, 1895.) SUFFICIENCY OF COMPLAINT-COLLATERAL ATTACK ON JUDGMENT-SHOWING OF INJURY. A complaint alleged that defendants obtained a conveyance of certain land from plaintiff's wife, and claimed thereunder an interest in land belonging to plaintiff, and procured a conveyance thereof from a commissioner, by order of a certain court, and that plaintiff thereby lost his title. The complaint showed that such court had jurisdiction of the subject-matter of the proceeding, but failed to allege that plaintiff was a party thereto. Held, that the complaint was demurrable, since, if plaintiff was a party, he was bound by the order, and if he was not a party he was not bound thereby, and suffered no injury therefrom. Appeal from circuit court, Huntington county; J. S. Dailey, Judge. Action by Joseph B. Davis against Joseph Taylor and wife. From a judgment for defendants, plaintiff appeals. Affirmed. T. G. Smith, for appellant. C. W. Watkins, for appellees. MCCABE, C. J. The circuit court carried a demurrer to the third paragraph of appellee's answer back to appellant's complaint, and sustained said demurrer to said complaint, and, appellant refusing to plead further, the appellees had judgment upon the demurrer. The assignment of error calls in question that ruling. The substance of the complaint is that the appellees had entered into a contract with Susan Davis, wife of appellant, by which she agreed to and did convey to appellees certain described real estate in Huntington county; that by virtue of said contract and conveyance made to appellees by said Susan Davis said appellees claimed to acquire some right and title in and to another described parcel of real estate in said county adjacent to that conveyed as aforesaid, and which last parcel was owned by appellant; that afterwards appellees obtained an order of the Huntington circuit court upon said contract and deed, appointing Z. T. Dungan a commissioner of said court to convey the last above mentioned real estate so owned by appellant to said appellees, and, in obedience to said order, said commissioner did so convey the same to appellees, whereby plaintiff lost his title to said land, greatly to his damage in the sum of $1,500; that appellant never agreed or obligated himself to include his said land in said contract and deed between his said wife and said appellees, nor did he ever receive any consideration for his said land; that the said land is of the value of $1,500; that appellees neither own nor hold any other property of much value than the real estate herein before mentioned, and a personal judgment against them would be fruitless, wherefore he demands judgment for $1,500, and that the same may be declared a first lien upon the real estate herein before described, and he herewith files his lis pendens notice, and asks his equitable lien to be foreclosed therein, and for all other proper relief. Appellant's complaint makes his right to recover depend upon the question whether the facts stated therein show that he had lost his title to his land as alleged, if even that would entitle him to recover its value, and enforce such recovery as a lien on such land. If the order of the circuit court of Huntington county, by which it is claimed he was deprived of and lost his title, was entered in a cause to which he was a party, then the adjudication was conclusive upon him, and he could not be heard to question or assail it in this collateral way, if the court rendering it had jurisdiction of the subject-matter and the parties. Waltz v. Barroway, 25 Ind. 380; Dequindre v. Williams, 31 Ind. 444; Anderson v. Wilson, 100 Ind. 402; Evans v. Ashby, 22 Ind. 15; Hawkins v. Hawkins, 28 Ind. 66; Gale V. Parks, 58 Ind. 117; Lantz v. Maffett, 102 Ind. 23, 26 N. E. 195; State v. Morris, 103 Ind. 161, 2 N. E. 355; Cassady v. Miller, 106 Ind. 69, 5 N. E. 713; Hall v. Durham, 109 Ind. 434, 9 N. E. 926, and 10 N. E. 581; Jarboe v. Severin, 112 Ind. 572, 14 N. E. 490. The complaint shows that the Huntington circuit court had jurisdiction of the subjectmatter of the alleged order. Where a court of general jurisdiction, as the Huntington circuit court was, has jurisdiction of the subject, it will be presumed that jurisdiction of the person was acquired, in the absence of a contrary showing. Bank v. Ault, 102 Ind. 322, 1 N. E. 562; Waltz v. Barroway, supra; Hawkins v. Hawkins, supra; Gavin v. Graydon, 41 Ind. 559; Goar v. Maranda, 57 Ind. 339; Cavanaugh v. Smith, 84 Ind. 380; Cassady v. Miller, supra. But this rule only applies in general where the person sought to be concluded was a party to the adjudication. Here the complaint does not disclose whether the appellant was a party to the adjudication stated in the complaint in this case or not. If, however, he was not a party to that adjudication, he was not bound by it, for it is a familiar principle that no one is bound by a decree or judgment to which he was not a party or privy. Curtis v. Gooding, 99 Ind. 45. Therefore, if the appellant was not a party to the adjudication or order by which a commissioner was ordered to convey his land to the appellees, he was not bound thereby, and hence did not lose his land, or the title thereto, by virtue of said order and conveyance. So, that, in any possible light in which the complaint can be viewed, it does not state facts sufficient to constitute a cause of action. The mere fact alleged that the appellant did not receive any consideration for his land is of no force whatever, because, if he was a party to that suit, and that fact constituted any defense, he was bound to set that defense up, and, failing so to do, he would be forever after estopped and concluded, as to that and all other defenses, by the judgment. Craighead v. Dalton, 105 Ind. 72, 4 N. E. 425; Woolery v. Grayson, 110 Ind. 149, 10 N. E. 935. It has even been held that a judgment rendered upon an obligation without any valid consid. eration is binding until reversed. Cassel v. Scott, 17 Ind. 514. The circuit court did not err in carrying back and sustaining the demurrer to the complaint. The judgment is affirmed. RICHMOND GAS CO. v. BAKER.1 (Supreme Court of Indiana. Jan. 29, 1895.) NEGLIGENCE-PLEADING-CONTRIBUTORY NEGLI GENCE. 1. In an action for negligence, the complaint must allege plaintiff's freedom from contributory negligence. 2. An allegation that plaintiff "has been," in all things, free from negligence, renders the complaint demurrable, as it does not necessarily allege freedom from negligence at the particular time of the injury. 3. A verdict for plaintiff does not cure error in overruling a demurrer to the complaint. Appeal from circuit court, Wayne county; D. W. Comstock, Judge. Action by Sarah Baker against the Richmond Gas Company. From a judgment for Reversed. plaintiff, defendant appeals. Thos. J. Study, for appellant. Jackson & Starr, for appellee. HACKNEY, J. The appellee sued the appellant for damages, the result of personal injuries sustained from an explosion of artificial gas. The complaint was in three paragraphs, in each of which it was alleged that the appellant was engaged in supplying the citizens of the city of Richmond with artificial gas for illuminating purposes, by means of pipes in the streets of said city, and by connections made between such pipes and the piping of the buildings of consumers, which connections were supplied and made by the appellant; that the building of one Thomas Crabb had been piped for the use of such gas, and the appellant made the connection of its service pipes and mains with the piping of said building, and turned its 1 Superseded by opinion, 45 N. E. 1049. gas into the pipes of said building. By the negligence of the appellant in making said connection, gas escaped into and under said building. The lighting of a match, by a stranger, ignited the gas, causing an explosion, which resulted in the destruction of the building and the injury of the appellee, who, with the family of said Crabb, occupied said building. The paragraphs differ in charging the negligence in making said connection; the first alleging that the connection was made by pipes laid in trenches, and covered from view, and in such manner as to permit the gas to escape, but the particulars of which negligence were unknown to the appellee; the second alleged that, in making the connection, the appellant supplied a defective iron elbow joint or coupling, from which the gas leaked, and in subsequently making insufficient repairs upon instead of replacing said coupling with a new and perfect elbow; and the third alleged but the supplying and connecting by the use of said defective elbow. At the conclusion of the allegations of fact, and by distinct allegation in each of the paragraphs, the appellee attempted to plead noncontributory negligence upon her part. In the first paragraph the allegation is as follows: "The plaintiff further says that in all the matters and things aforesaid she has been wholly blameless and without fault." The allegation in each of the second and third paragraphs is as follows: "She further says that she has been in all things wholly blameless and without fault." The trial resulted in a verdict and judgment against the appellant for $4,600, from which this appeal is prosecuted. The first alleged error arises upon the overruling of a demurrer to the several paragraphs of complaint. Appellant first insists that neither paragraph alleges in substance, or by facts rebutting the contrary presumption, that the appellee was free from negligence contributing to the occurrence and injuries of which she complains. The general allegation of freedom from contributory negligence has many times been held sufficient, unless the specific averments show, notwithstanding the general allegations, that the plaintiff was negligent. Stewart v. Pennsylvania Co., 130 Ind. 242, 29 N. E. 916. The rule in this state is established by a long and unbroken line of decisions that in actions for negligence the plaintiff must allege not only the defendant's negligence in the act complained of, but that he was himself free from negligence contributing to the injury or loss for which he would recover. President, etc., of Town of Mt. Vernon v. Dusouchett, 2 Ind. 586; Board, etc., v. Mayer, 10 Ind. 401; Railroad Co. v. Hiatt, 17 Ind. 102; Railroad Co. v. Keeley, 23 Ind. 134; Riest v. City of Goshen, 42 Ind. 339; Railroad Co. v. Hendricks, 26 Ind. 230; Hathaway v. Railroad Co., 46 Ind. 25; Railroad Co. v. Goldsmith, 47 Ind. 43; Railroad Co. v. Boland, 53 Ind. 402; Thompson v. Railroad Co., 54 Ind. 197; Williams v. Moray, 74 Ind. 27; Pennsylvania Co. v. Gallentine, 77 Ind. 27; Wilson v. Gravel-Road Co., 83 Ind. 326; Rogers v. Overton, 87 Ind. 411; Railroad Co. v. Lockridge, 93 Ind. 191; Railroad Co. v. Johnson, 96 Ind. 40; Bier v. Railroad Co., 132 Ind. 78, 31 N. E. 471. The rule that the general and direct allegation of noncontributory negligence is sufficient has never been so relaxed as to permit an allegation which does not negative contributory negligence in the particular act or acts causing the injury or loss. On the contrary, it has been frequently held, as will be seen from the cases we have cited, that the negative allegation must comprehend every part of the negligence charged to have caused the injury. See Riest v. City of Goshen, supra, and Railroad Co. v. Johnson, supra, and cases cited in each. The allegation of the second and third paragraphs of complaint "that she has been in all things wholly blameless and without fault" is assailed as falling short of the rule. "All things," say appellee's learned counsel, comprehend these things of which complaint is made, and, if she has been blameless in all things, she has been blameless in these things. But the criticism is directed to the uncertain element time, rather than things. The rule requires the negation to be directed to the occurrences of the particular time; namely, the acts and omissions which constitute the negligence of the time relied upon. That she may have been free from blame in all things at one time does not raise the necessary inference that she was free from blame at a later time; that is to say, when the appellant did and omitted those things of which complaint was made. A. may say, "I have been free from sin," but it does not follow of necessity that such freedom has continued from his earliest time to the time of so declaring. If it were his duty to establish his freedom from sin at a particular time, it would be insufficient to allege that freedom in such manner that it may have been at any time, as well before or after the particular time. The allegation violates the rule of pleading that a fact not necessarily implied, although inferable, is not sufficiently alleged by alleging the fact which suggests it. Brown v. Brown, 133 Ind. 476, 32 N. E. 1128, and 33 N. E. 615; Railroad Co. v. Johnson, supra; Abb. Tr. Brief, § 51, and cases cited. The allegation is but to have said: there was a time when she was, in all things, wholly blameless and without fault. Admitting this, she may have been culpable in the occurrence which is the essential element of her cause of action. If this admission is too narrow to exclude all possible contributory negligence, the pleading must be held defective. The error in overruling the demurrer to the second and third paragraphs of complaint is held to be fatal, and is not cured by the verdict. Johnson v. Breedlove, 72 Ind. 368; New v. Walker, 108 Ind. 365, 9 N. E. 386. While it may be that the first paragraph is not subject to the same objection, of this we do not decide. It does not appear that the finding was upon the first paragraph, and our duty to reverse the case is imperative. Other questions are discussed, but, as they may not again arise, we do not decide them. The judgment of the circuit court is reversed, with instructions to sustain the appellant's demurrer to the second and third paragraphs of complaint. (141 Ind. 394) CURRIER et al. v. ELLIOTT.' (Supreme Court of Indiana. Jan. 29, 1895.) REVIEW ON APPEAL-DECISION ON PRIOR APPEAL -EXECUTION SALE OF HUSBAND'S LAND-RIGHTS OF WIFE-VALIDITY OF STATUTE - OBLIGATION OF CONTRACTS. 1. Questions decided on one appeal will not be reviewed on a subsequent appeal in the same case. 2. Judgment creditors of a husband, who buy his land on sale under their judgments at such a price as to satisfy the judgments, are not in a position to attack, as impairing the obligation of contracts, an act passed before the sale, but after the accrual of the debts for which the judgments were given, which provided that on a judicial sale of the husband's land the wife's inchoate third interest should vest in her, they claiming as purchasers merely, and their rights as creditors being extinguished. Appeal from superior court, Marion county; Lewis C. Walker, Judge. Action by Calvin A. Elliott against Moodie Currier, the Amoskeag Savings Bank, and others. From a judgment for plaintiff, defendants appeal. Affirmed. S. Claypool, Aug. B. Young, and W. H. Ketcham, for appellants. Miller, Winter & Elam, for appellee. JORDAN, J. This action was commenced in the superior court of Marion county by the appellee, on October 25, 1878, for the partition of his alleged interest in certain lands acquired by him by descent through his deceased wife, Martha Elliott. This is the third appeal of this case to this court. The court below sustained a demurrer to the complaint, as the same was originally filed, and from this decision an appeal was successfully prosecuted and the judgment was reversed. See Elliott v. Cale, 80 Ind. 285. This court remanded the cause for further proceedings, and thereupon the appellee herein, plaintiff below, filed what was termed a "supplemental complaint," wherein it was alleged, among other things, that Cale had, during the pendency of the appeal, conveyed all of the realty in question to Moodie Currier, and that the latter had made conveyances to other parties, who were made defendants, and the plaintiff again demanded that one-third of the several parcels of real estate be set off to him, and that an accounting of the rents and profits be bad. Issues were subsequently joined by the several parties upon the complaint, and the respective pleadings filed. The second trial resulted in a judgment against the apRehearing denied. pellee herein, and he again appealed to this. court (see Elliott v. Cale, 113 Ind. 383, 14 N. E. 708), which resulted in a reversal; and the cause was again remanded to the trial court, with instructions to change its conclusions of law, and make them in favor of the appellant, and to adjust the rights of the parties as to the rents and improvements, etc., to order partition, and to proceed in accordance with the opinion of this court. In the opinion of the court in the appeal last mentioned the state of the pleadings and the facts especially found by the court are fully stated. After the second reversal of the cause by this court, the appellee filed a sec ond supplemental complaint, setting up the facts that the two appellants, Currier and Maus, had continued in possession of the realty of which they were respectively in possession at the time of the former trial, and that appellee had by them been excluded, and that they had received and appropriated to their own use the rents and profits, and the court was asked to make an additional special finding of the rents so received. The appellants Currier and Maus filed an additional paragraph of answer. In the second paragraph of each answer filed by Currier and Maus they each substantially alleged that the indebtedness upon which the judgment in favor of Kingan and the Amoskeag National Bank, these being two of the five judgments in satisfaction of which the lands in controversy were sold, was contracted prior to the 24th day of August, 1875, at which date the act of legislature pertaining to the vesting of the inchoate interest of the wife in the realty of her husband upon judicial sales took effect. Rev. St. 1881, § 2508 (Rev. St. 1894, § 2669). It was further alleged that, in addition to the lands described in the complaint, there was sold at the same time by the sheriff, on the executions issued upon these judgments, another parcel known as "part of lot 12, in square 66," which was bid off by defendant Cale in trust for the execution plaintiff; that this last-mentioned lot was incumbered by mortgage, which was prior to the lien of the judgments; that the mortgage had been subsequently foreclosed, the land sold thereunder for the debt, a deed executed to the purchaser, and that thereby the title, which had passed to Cale for the execution plaintiffs, had been defeated. The value of all the parcels that had been sold was alleged, and also that such value was less than the indebtedness contracted before August 24, 1875. The appellee replied to this answer, alleging that the five judgments, upon which the sheriff's sale on execution was made, were rendered and made liens in the following order, to wit: That of the First National Bank of Lebanon, together with one in favor of the Amoskeag National Bank and Kingan, September 5, 1876; and others in favor of Alfred and John C. S. Harrison and Fletcher & Sharp, September 6, 1876; and that, by rea son of partial payments that had been made, the total amount due on the judgments rendered September 5th was $14,466.97. The reply further alleged that the realty sold upon the executions on said judgments, including all the parcels described in the complaint, and the part of lot 12, in square 66, and certain other small parcels, was sold in the order and for the amounts stated (which were set out at length), and that the entire proceeds of the sale amounted to $32,124.28, and that thereby all of the judgments were satisfied. It was further averred that the part of lot 12, in square 66, which the answer alleged had been lost by foreclosure and sale upon the prior mortgage, was of the value of $50,000 at the time of its sale, and that the mortgage incumbrance thereon was much less than its value, and that it was lost by defendants' failure to redeem. A trial was had upon the issues joined, and, upon request, the court made a special finding of the facts, and stated its conclusions of law thereon. The finding of the facts, briefly and in substance, is as follows: (1) That Elliott was, on and before September 7, 1876, the owner of the real estate described, and also of parts of lots 7, in square 72, and lot 12, in square 66, in Indianapolis, Ind. (2) That on the 5th day of September, 1876, the following parties recovered judgments in the superior court of Marion county, Ind., against appellee herein, Calvin A. Elliott, et al., to wit: First National Bank of Lebanon, Ind., $2,638.86, and costs; the Amoskeag National Bank, for $6,458.78 and costs; Thomas D. Kingan, for $10,166.66 and costs; and on September 6, 1876, in the same court and against said Elliott, Alfred and John C. S. Harrison recovered a judgment for $3,031.16, and Fletcher & Sharp recovered one for $12,815.97 and costs. (3) August 29, 1876, Elliott made a voluntary assignment under the statute to John C. New, which deed of assignment included all of the real estate in controversy, and the said deed was filed in the recorder's office of Marion county, Ind., September 7, 1876. (4) At and prior to the rendition of these judgments, Elliott had a wife, Martha Elliott, who was not a party to any of these actions, and whose inchoate interest in the lands was not directed to be sold, and that she did not join in the assignment to New, or in any way release her said interest. (5) The real estate was levied on by the sheriff upon execution issued on these judgments, and advertised for sale. (6) New, the trustee, instituted an action to enjoin the sale upon the execution, but was defeated. (7) Writs of venditioni exponas were issued upon each of the judgments, and the property sold, September 8, 1877, to Cale as trustee for the execution plaintiffs. (8) Martha Elliott, the wife, died September 20, 1877, leaving her husband surviving her. (9) September 14, 1878, the time of redemption having expired, the sheriff executed a deed to Cale, as such trustee, for the real estate sold. Cale took possession of the same, which he continued to hold until he conveyed the land away. (10) October 28, 1878, Elliott demanded to be admitted into possession as a tenant in common, and also demanded an accounting of the rents and partition, all of which was refused. (11) On December 7, 1878, Cale conveyed the real estate to Currier, one of the appellants, who took and held possession until he sold. (12) October 1, 1880, Currier conveyed to appellant Maus lots 51 and 52, in Blackford's subdivision, which Maus then took, and has continued in possession, and he (Maus) had at said time actual notice of Elliott's claim to the interest in the property. (13) Currier, since conveyance by Cale to him, has continued in possession of lots 1 and 4 Wright's addition. (14) When Maus purchased of Currier, he executed a mortgage for $2,000, which is still of record. (15) Such real estate was of the following value: Maus' property, $5,500; the property in Elliott's resubdivision, $1,600; lot 14, Wright's addition, $900; part of lot 7, square 72, $4,000; lot 12, square 66, $50,000. (16) The total rental value of the property while it was held by Currier was $2,985.71. He expended for taxes, repairs, etc., $1,912.75. (17) The rental value of the Maus property, while held by him, was $2,683.33, and Maus expended in repairs and taxes, etc., $1,810,58. (18) The indebtedness on the notes accrued and was contracted as follows: Kingan note, July 6, 1875; Amoskeag National Bank, August 10, 1875; on the other notes, in March and May, 1876. At the time of the sheriff's sale, the amounts due on the judgments were as follows: National Bank of Lebanon, $2,985.79; the Amoskeag National Bank, $7,250.38; Kingan, $4,230.80; Harrison's, $3,388.76; Fletcher & Sharp, $14,268.55; total, $32,124.28. The real estate was sold in the following order, and for the amounts stated: Lot 14, Wright's addition. Lot 1, Elliott's Resub. The balance of the realty levied on. $ 800 00 22,117 58 6,500 00 350 00 290 00 280 00 280 00 1,500 00 6 70 $32,124 28 Total proceeds of sale....... -And thereby all judgments were satisfied. It is further found that New, on August 20, 1877, resigned as trustee, and was succeeded by one Jones; that on March 20, 1878, after the sale and the death of Martha Elliott, Jones, as such trustee, sold the real estate to the plaintiff, Calvin A. Elliott. Upon the special finding the court stated its conclusions of law, as follows: (1) That Elliott, appellee, was the owner of one-third and Maus two-thirds of the Maus property. (2) That Elliott was the owner of one-third and Currier of two-thirds of lots 1 and 4, in Ellious resubdivision of lot 14, in Wright's addition. (3) That the mortgage from Maus to Currier is not a lien on Elliott's one-third. |