Hawkins v. McDougal

Elliott, J.

— The appellants’ counsel ask that the judgment, as to part of the appellants, be reversed, for the reason, that the endorsement on the complaint of the time for the return of the summons is defective. The endorsement reads thus : u The plaintiff hereby fixes Monday, May 20th, for defendants to appear and answer this complaint.” The endorsement is signed “ Gard, T. & O. & H., attorneys for MeDougal.” A summons was issued and served. No objection was made to the endorsement in the trial court, nor was any ojection there made to the summons. ¥e think it clear that none can be successfully made in this court for the first time, although some of the defendants were infants. The endorsement secured a proper and due service, and the most perfect endorsement could have done no more.

Filed Nov. 12, 1890; petition for a rehearing overruled Jan. 16, 1891.

It is assumed by appellants’ counsel that the appellee seeks-by a suit for an injunction to obtain possession of land, but in this they are in error. The appellee had obtained a judgment for possession, in an appropriate action, and then sought an injunction restraining the appellants from wrongfully interfering with the sheriff in executing the writ issued on that judgment. The facts appear in the opinion filed in the case of Hawkins v. State, 125 Ind. 570, and it is unnecessary to restate them. As the appellants were unlawfully interfering with the execution of a writ by the sheriff, to the injury of the appellee, he had a right to ask the court to aid him by injunction.

The question as to the right to possession was settled in the former action, and no questions involved in that action and adjudicated by the judgment there rendered can be litigated in the present suit. It would avail the appellants-nothing if it were conceded that there was some defect in the notice given in the ejectment proceedings, or some error in the rulings of the court in that action, for such defects and errors are not availing in a collateral attack. Sauer v. Twining, 81 Ind. 366; Krug v. Davis, 85 Ind. 309; Pickering v. State, etc., 106 Ind. 228; Kleyla v. Haskett, 112 Ind. 515. This general rule applies to infants. Harris v. Boss, 112 Ind. 314.

Judgment affirmed.