-723. In all cases where judgment has heretofore been, or shall hereafter be, recovered against one or more persons jointly liable on contract, but such judgment has been, or shall be, rendered only against part of the persons liable, for the reason that the others were not summoned and did not appear, the plaintiff may proceed against those not summoned and who did not appear, in the same manner as if they were alone liable, but the complaint must allege the facts aforesaid. Defendants residing outside of the county where the judgment is rendered may be summoned under this section. Erwin v. Scotten, 40 Ind. 389. This section applies where some of the defendants were not summoned and did not appear. Martin v. Baugh, 1 App. 20. 324. (322.) Return of "not found" as to part.-63. When there is a return of "not found" as to any of the defendants, such return. shall be suggested on the record, and the plaintiff may continue the cause, as to them, for another summons, at his option; and he may, in either case, proceed against the defendants served in time. It is only necessary that "not found" be suggested on the record; the full return need not be entered. Erwin v. Scotten, 40 Ind. 389. The abatement of the action as to defendants not served will not discontinue the suit as to other defendants. Dawson v. Wilson, 55 Ind. 216; Boots v. Boots, 84 Ind. 171. 325. (323.) Plaintiff's privilege when part are served.—429. When the summons has been served in due time on part only of the defendants, the plaintiff may dismiss, or continue for further proceedings, his action as to those not summoned, or not summoned in time, and proceed to trial as to the others, or continue as to all of them, at his option. If a judgment is taken against a portion of the joint obligors and a dismissal taken as to others, such others can not be sued again. Archer v. Heiman, 21 Ind. 29. 326. (324.) Lis Pendens Record.-72. There shall be kept in the office of the clerk of the several circuit courts of this state a book to be called the "Lis Pendens Record," which shall be a public record. This act did not apply to suits pending at the time it took effect, nor to suits in United States courts. Wilson v. Hefflin, 81 Ind. 35. See Brown v. Goodwin, 75 N. Y. 409; Leitch v. Wells, 48 N. Y. 585; Mills v. Bliss, 55 N. Y. 139. 327. (325.) Notice by party-Contents-Filing.-73. That whenever any suit shall be commenced upon any bond payable to the state of Indiana, in any of the courts of this state, it shall be the duty of the plaintiff in such case to file with the county clerk a written notice, containing the title of the court, the names of all the parties to such suit, and a statement that it is upon an official bond; and whenever any person shall have commenced a suit, whether by complaint, or by cross-complaint as defendant, to enforce any lien upon, right to, or interest in any real estate upon any claim not founded upon an instrument executed by the party having the legal title to such real estate, as appears from the proper records of such county, and recorded as by law required; or not founded upon a judgment of record. in the county wherein such real estate is situated, against the party having the legal title to such real estate, as appears from such proper records. It shall be the duty of such person to file with the clerk of the circuit court in each county where the real estate sought to be affected is situated, a written notice containing the title of the court, the names of all the parties to such suit, a description of the real estate to be affected, and the nature of the lien, right, or interest sought to be enforced against the same; which notices shall, upon the payment of the proper fees, be immediately recorded in said "Lis Pendens Record " by the clerk, who shall note upon the record the day and hour when said notice was filed and recorded. [As amended, Acts 1889, p. 201. Ell. Sup. Sec. 14. In force May 10, 1889.] 328. (326.) Attachment or levy-Notice and filing by sheriff.74. Whenever any sheriff or coroner of any county in this state shall seize upon any real estate or interest therein, by virtue of any writ of attachment; or shall levy upon any such real estate or interest therein, by virtue of any execution issued to him from any court other than the court of the county in which he is sheriff or coroner,—he shall, at the time of making the seizure or levy, file with the clerk of the circuit court of his county a written notice, setting forth the names of the parties to the proceedings upon which the writ of attachment or execution is founded, and a description of the land seized or levied. upon; which notice shall be recorded, as provided for in the preceding section of this act; and such sheriff or coroner shall state, in his return to the attachment or execution, that such notice has been filed; and for making and filing which notice he shall be allowed a fee of fifty cents, to be taxed as costs: Provided, That such sheriff or coroner shall not be required to file such notice until the attachment or execution-plaintiff shall have furnished the money to pay the clerk for filing and recording the same. 329. (327.) Index of clerk.-75. It shall be the duty of the several clerks, upon filing and recording the notices herein provided, to index the same in the name of the several parties whose interest in such real estate is sought to be affected by such suits, attachments, or executions, the plaintiff versus the names of all the defendants, and each defendant whose real estate is sought to be affected at the suit of the plaintiff. 330. (328.) Fees of clerk.-76. The clerk shall receive twenty-five cents for filing, recording, and indexing each notice required by this act, to be paid by the person filing the same; and the further sum of fifteen cents for entering satisfaction of the lien, right, or claimed interest, as hereinafter provided. 331. (329.) Satisfaction of lien-costs.-77. Upon the final determination of any suit, brought for the purposes in section seventythree [§ 325] specified, adversely to the party seeking to enforce a lien upon, right to, or interest in, such real estate, it shall be the duty of the court rendering the judgment to order the proper clerk to enter in said "Lis Pendens Record" a satisfaction of the lien, right, or inter est sought to be enforced against said real estate; and upon such entry being made, said real estate shall be forever discharged therefrom, and the costs for entering such satisfaction shall be taxed as part of the costs in the case. 332. (330.) Dismissal of attachment, etc.-Certificate Fee. 78. Whenever any such attachment shall be dismissed; or the judgment rendered thereon shall be satisfied, or such execution shall be satisfied without a sale of such lands so seized or levied upon as aforesaid, or upon a redemption of such real estate within the time allowed by law. after a sale thereof upon execution, it shall be the duty of the clerk of the proper court, from which such attachment or execution was issued, upon the payment of a fee of fifty cents by the owner of such real estate, to make a certificate of such dismissal or satisfaction, to be entered upon the "Lis Pendens Record," if the same is in his office, or to be recorded in the "Lis Pendens Record" of the proper county where such real estate is situated; and upon such certificate being entered or recorded, such real estate shall be discharged from the lien of such attachment or execution. 333. (331.) Failure to file notice-Effect.-79. Until the proper notices required by this act have been filed with the proper clerk, the bringing of suits for the purposes mentioned in section seventy-three [§ 325], and the seizure of real estate under attachments, and the levy thereon under execution, in the cases mentioned in section seventyfour [$326] shall not operate as constructive notice of the pendency of such suits, or of the seizure of or levy upon such real estate, nor have any force or effect as against bona fide purchasers or incumbrancers of the same. 334. (332.) Judgment liens not affected.-80. Nothing in this act shall be construed to impair the lien of judgments of the several courts of record of this state upon the real estate of defendants in the county where such judgments are rendered, or transcripts thereof filed and recorded, as now required by law. [Acts 1893, p. 339. In force March 4, 1893.] 335. Orders affecting real estate.-1. That orders granted by any court or judge in vacation, whether upon a hearing or ex parte in any cause or proceeding, when they affect the disposition of real estate, may be recorded in the Lis Pendens Record kept in the office of the clerk of any county in which the real estate affected is situated; and upon being so recorded, shall be notice of the matters therein set forth to all persons that are or may become interested in such real estate, and the provisions of such orders shall take effect upon such real estate against any subsequent disposition thereof. SEC. ARTICLE 9.-ACTIONS, WHEN DISMISSED. 336. Action dismissed, when. SEC. 337. Dismissal in vacation-Costs. [1881 S., p. 240. In force September 19, 1881.] 336. (333.) Action dismissed, when.-433. An action may be dismissed without prejudice First. By the plaintiff, before the jury retires; or, when the trial is by the court, at any time before the finding of the court is announced. It is too late to dismiss after the finding of the court is announced. Walker v. Heller, 56 Ind. 298; Randles v. Randles, 63 Ind. 93. The plaintiff may dismiss the whole or any part of his cause before the jury retires. Dunning. Galloway, 47 Ind. 182; Holland v. Johnson, 51 Ind. 346. A party pleading a set-off stands as a plaintiff. Crane v. Hilligross, 21 Ind. 210. A cause can not be dismissed after the jury retires without the consent of the defendant. Sanders v. Sanders, 24 Ind. 133; McClelland v. Louisville, etc., R. W. Co., 94 Ind. 276. A finding is announced when the finding is entered in the record by order of the court, and the court can not erase such finding. Walker v. Heller, 56 Ind. 298. The same rule applies to the dismissal of a cross-complaint that applies to a complaint. Mitchell v. Friedley, 126 Ind. 545. If a general finding is withdrawn to make a special finding the case stands as if no finding had been made. Mitchell v. Friedley, 126 Ind. 545. A dismissal of a complaint does not carry with it a cross-complaint. Egolf v. Bryant, 63 Ind. 365; Watts v. Sweeney, 127 Ind. 116. An intimation by the court as to what a finding may be will not amount to a finding. Beard v. Becker, 69 Ind. 498; Burns v. Reigelsberger, 70 Ind. 522. The finding must be made orally or entered of record. Cohn v. Rumely, 74 Ind. 120. Second. By the court, where the plaintiff fails to appear on the trial. If a plaintiff is defaulted the action is in effect dismissed. Hulman v. Benighof, 125 Ind. 481. Third. By the court, on the refusal to make the necessary parties, after having been ordered by the court. Fourth. By the court, on the application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence. Fifth. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action. The court may dismiss a cause for disobedience of an order to produce papers on the trial. Silvers . Junction R. R. Co., 17 Ind. 142; Whitman v. Weller, 39 Ind. 515. In all other cases, upon the trial the decision must be upon the merits. 337. (334.) Dismissal in vacation-Costs.-434. The plaintiff may dismiss his action in vacation, by filing with the clerk a writing to that effect. The clerk shall enter such written dismissal in the orderbook, and the court shall enter judgment accordingly at the next term. The plaintiff shall not be liable to the defendant for any costs made by him after notice of the dismissal. The simple dismissal of a suit is no bar to another for the same cause. Cleghorn, 13 Ind. 438. Crews v. Dismissal is equivalent to non-suit. Montgomery v. Jones, 5 Ind. 526. After a cause is dismissed and judgment of dismissal entered, the cause is no longer pending for any purpose. Breese v. Allen, 12 Ind. 426; Wiseman v. Lynn, 39 Ind. 250. The plaintiff may dismiss his suit in vacation, by written dismissal filed with the clerk. St. John v. Hardwick, 17 Ind. 180. The court retains jurisdiction until the judgment of dismissal is entered. Courtney r. Courtney, 4 App. 221. |