Opinion
No. 28,088.
Filed May 29, 1945.
1. APPEAL — Moot Questions — Mandamus to Have Judgment Set Aside — Satisfaction and Release of Judgment. — The question involved in an action to mandate a justice of the peace to set aside a default judgment against relators for possession of real estate and damages for the wrongful detention thereof was rendered moot by the action of relators in voluntarily vacating the premises and by the action of the judgment plaintiff in satisfying and releasing the judgment, even though relators paid nothing on the judgment and the release and satisfaction thereof was without consideration. p. 418.
2. JUSTICES OF THE PEACE — Judgment — Release and Satisfaction — Judgment Plaintiff Bound Regardless of Lack of Money Consideration. — An entry of release and satisfaction of a judgment on the docket of a justice of the peace court by authority of the judgment plaintiff is binding upon such judgment plaintiff, even though there is no money consideration therefor. p. 418.
3. APPEAL — Moot Questions — Appeal Involving no Question of General Public Interest Dismissed. — Where the question involved in an action to mandate a justice of the peace to set aside a judgment against relators for possession of real estate and damages for its wrongful detention was rendered moot by the vacation of the premises by relators and the entry and satisfaction of the judgment by the judgment plaintiff, and the appeal in the action involved no question of general public interest, such appeal was dismissed. p. 418.
From the Lake Superior Court, Room No. 5; Harold L. Strickland, Judge.
Action by the State of Indiana, on the relation of Robert Robinson and Vera Robinson, his wife, against Stephen J. Boniecki, as Justice of the Peace in and for North Township, Lake County, Indiana, to mandate respondent to set aside a default judgment entered by him against relators for possession of certain real estate and damages for its wrongful detention. From a judgment for respondent, relators appealed, and respondent moved to dismiss the appeal.
Appeal Dismissed.
Andrew J. Evans and George Panea, both of Hammond, for appellants.
Sachs Efron, of Hammond, for appellee.
This is an action by the appellants to mandate the appellee to set aside a certain judgment rendered by appellee by default against the relators in favor of Saint Nicholas American Russian Orthodox Church for possession of certain real estate and damages for the wrongful detention thereof. Appellants base this action to set aside said default on § 5-905, Burns' 1933, claiming that said section is mandatory when the provisions thereof are complied with.
A motion has been filed by the appellee to dismiss the appeal wherein it is made to appear that since the submission of this case the following release and satisfaction of said default judgment, by authority of said Church, has been duly entered and attested on appellee's docket where the aforesaid judgment was entered:
"April 16, 1945 — the above and within judgment and costs are hereby fully paid, released, and satisfied. Saint Nicholas American Russian Orthodox Church by Sachs Efron, its attorneys, by Frank S. Efron — Attest: Stephen J. Boniecki, J.P."
Relators, by their counsel, have filed counter-affidavits in opposition to said motion to dismiss, wherein it appears that they have not paid anything on said judgment, but that, after paying the rent in full, they vacated the premises involved in the default judgment, and that said vacation was not in satisfaction of said judgment, but was voluntary, because they had purchased a home.
From the foregoing uncontroverted facts, it is our opinion that the question involved in this action has been rendered moot. The relators have voluntarily vacated the premises and the 1, 2. Church has satisfied the judgment as fully as it could so satisfy the same. This entry of satisfaction, even though there was no money consideration for the same, is binding upon the said Church. Monnet v. Hemphill (1886), 110 Ind. 299, 11 N.E. 230.
Under the circumstances the appeal should be dismissed unless some question of general public interest is involved. There is no such question in this appeal. 132 A.L.R. 1185, note. The 3. appeal is dismissed.
Note. — Reported in 61 N.E.2d 176.