Rudisell v. Jennings , 38 Ind. App. 403 ( 1906 )

Wiley, J.

Appellee sued appellant and his wife upon a promissory note and to foreclose a chattel mortgage given to secure its payment. The court 'made a special finding of facts • and stated its conclusions of law thereon. By its conclusions of law the court held that appellant’s wife was not liable, and rendered judgment in her favor for costs, and against appellant upon the note and to foreclose the mortgage as to all the property described therein, except two cows, which the court found belonged to appellant’s wife.

Appellant moved for a venire de novo, for a new trial, and to modify the judgment, all of which motions were overruled. The errors assigned are the overruling of the demurrer to the complaint and the overruling of the three motions to which we have just referred.

Two objections are urged to the complaint: (1) Because it shows upon its face that the court did not have jurisdiction of the parties defendant; (2) the description of the mortgaged property was insufficient.

1. The mortgage which is filed as an exhibit to the complaint shows that the mortgagors at the time of its execution were residents of Johnson county, Indiana, and that the mortgage was recorded in that county. The suit was brought in Brown county, and there is no averment in the complaint that the mortgagors, at the time of the commencement of the action, resided in that county. The ground of the demurrer was that the complaint did not state facts sufficient to constitute a cause of action. A circuit court is a court of general jurisdiction, and it is only when the want of jurisdiction appears on the face of the complaint that a demurrer will lie. In actions in such a court it is not necessary that the complaint should affirmatively show that the court has jurisdiction. If there is nothing in the complaint to show whether the court has or has not jurisdiction, the question cannot be raised by demurrer, as the jurisdiction will be presumed. Brownfield v. Weicht (1857), 9 Ind. 394; Ragan v. Haynes (1858), 10 Ind. 348; Godfrey v. Godfrey (1861), 17 Ind. 6, 79 Am. Dec. 448; Board, etc., v. Tichenor (1891), 129 Ind. 562; 1 Works’ Practice (3d ed.), §474; Kinnaman v. Kinnaman (1880), 71 Ind. 417; Chapell v. Shuee (1889), 117 Ind. 481. It does not appear from the face of the complaint that the Brown Circuit Court was without jurisdiction, and, this being true, appellant could not question the jurisdiction, except by answer. Eel River R. Co. v. State, ex rel. (1896), 143 Ind. 231. Under these authorities it must be held that the court correctly overruled the demurrer to the complaint.

2. The property embraced in the mortgage is described as follows: “Two Jersey cows, three and five years old; three work horses, age, eight years and nine years; one farm wagon.” The complaint specifically describes the property, and avers that it was the only property of its character owned by the mortgagors. It is further averred that the mortgagors still own said property and are in possession of it. It is laid down in 1 Cobbey, Chattel Mortgages, §188, that “the general rule sterns to be that, as between the parties, any description is good, if the parties at the time knew and understood what the mortgage covered.” This rule is approved by the Supreme Court in Baldwin v. Boyce (1898), 152 Ind. 46. 3 Am. and Eng. Ency. Law, 181.

3. It has been held that a complaint upon a note and to foreclose a mortgage is good on demurrer, even though the description of the property in the mortgage is insufficient. Bayless v. Glenn (1880), 72 Ind. 5. Our conclusion is, therefore, that there is no merit' in 'appellant’s contention that the complaint is bad because of an insufficient description of the property.

4. This brings us to the special finding of facts and conclusions of law. The court found that appellant and his wife executed the note and mortgage in suit, and that the mortgage was duly recorded in Johnson county, Indiana, where the mortgagors at the time resided; that the mortgagors were husband and wife; that the two cows mentioned in the mortgage were the separate property of the wife; that all the other property named therein belonged to appellant, and that he was still in possession of it; that appellant’s wife executed said note and mortgage as surety for her husband, and that there was due on the note $291, principal, interest and attorneys’ fees. The conclusions of law are: (1) That Martha Rudisell, one of the defendants below, was not bound for the payment of said note; (2) that the mortgage is not a lien against the two cows; (3) that appellee was entitled to recover from appellant the amount due upon the note; (4) that the mortgage should be foreclosed; (5) that Martha Eudisell should recover her costs. The evidence is not in the record, and no attempt has been made to bring the evidence to this court. Upon the finding of facts and the conclusions of law the judgment is correct. As the evidence is not in the record, the reasons stated by appellant in his motion for a new trial, depending upon the evidence, cannot be considered.

5. One of the reasons for a new trial assigned in the motion is that the court “caused said trial to proceed without any official court reporter or other reporter being present to take down the testimony.” So far as the record shows, appellant did not, before the trial commenced, or during its progress, make any request that a reporter be appointed to take down in shorthand the evidence, and the first time the question was presented to the trial court was in the motion for a new trial. Counsel for appellant, in his brief, asserts that it is the duty, of'the court to appoint an official reporter “to take down the evidence in,all cases, and this is mandatory.” Counsel has evidently taken an erroneous view of the statute, for while it is the duty of the trial judge to appoint an official reporter, such reporter is only required to take down the evidence in shorthand when directed to do so by the judge. §1470 Burns 1901, Acts 1899, p. 384. If appellant, before entering upon the trial of the cause, had requested the court to appoint an official reporter to take down the evidence in shorthand, and the court had denied such request, he might have had some ground of complaint. But under the facts as disclosed by the record the court committed no error in this regard, and its failure to appoint such reporter was not a valid reason to be assigned in a motion for a new trial.

6. Appellant’s motion to modify the judgment goes to that part of it decreeing the foreclosure of the mortgage. The motion is based upon the proposition that, because of the insufficiency of the description of the mortgaged property, foreclosure could not be decreed. We have settled this question by what we have said in regard to the sufficiency of the complaint.

7. Appellant has not discussed the overruling of his motion for a venire de novo, and it is therefore waived.

Judgment affirmed.