78 Ind. App. 465 | Ind. Ct. App. | 1922
— Complaint by appellant in two paragraphs to quiet title by which it appears that Jonathan Hully, the common ancestor and grantor, of Rush county, Indiana, on October 3, 1889, divided his estate, consisting of 215 acres, in said county among his two daughters, Susan j. Harkléss and Mary Alice Alta, and a grandson, one George Hully, giving to the said George, by warranty deed, fifty-five acres, the undivided one-half of which is in controversy, in this action. Said deed contained the following habendum: “We hereby expressly reserve the right to the use, occupancy, rents and profits of said land during our lives, and to the survivor during his or her natural life. If George Hully dies without issue leaving no children, who would be his legal heirs, then this land is to revert to Susan J. Harkléss and Mary Alice Alta our daughters.” Mary Alice Alta afterwards died, leaving appellant as her sole heir at law.
Appellee answered each paragraph of complaint by plea of res adjudícala averring that said George Hully, as sole plaintiff on January 9, 1907, instituted an action in the Rush Circuit Court against the said Susan J. Harkléss and this appellant, to quiet his title to said fifty-five acres of real estate. The complaint among
Rosa Alta appeared to said action and filed a waiver of process and afterwards was ruled to answer the complaint, and failing so to do, on May 21, 1907, a default was taken against her and judgment rendered quieting the title of said plaintiff George Hully. Said Hully afterwards became dissipated, and a guardian was appointed who obtained an order of court and sold said real estate at public sale on January 11, 1908, and the appellees became the purchasers and went into possession and have ever since so remained. The court overruled a demurrer to each paragraph of answer and the defendant replied to each affirmative answer by a general
The court sustained a demurrer to the respective affirmative pleas, and the cause was submitted to a jury which returned a verdict for the defendant, on which the court rendered judgment. There was a motion for a new trial which was overruled.
Appellant presents as error the action of the court: (1) In overruling its demurrer to the first paragraph of answer, to the first paragraph of complaint; (2) in sustaining appellees’ demurrer to the first paragraph of reply to the first paragraph of answer to the first paragraph of complaint; (3) in overruling its demurrer to the first paragraph of answer to the second paragraph of complaint; (4) in sustaining appellee’s demurrer to
Appellant first contends that the demurrer to the first paragraph of answer to the first paragraph of complaint should have been sustained for the reason that it does not show that the court in the former action had jurisdiction of appellant. But it does appear by the answer that the former action was in the circuit court which is a court of general jurisdiction and the presumption is that the court had jurisdiction until the contrary is made to appear. Long v. Ruch (1897), 148 Ind. 74, 79, 47 N. E. 156; Soules v. Robinson (1902), 158 Ind. 97, 99, 62 N. E. 999, 92 Am. St. 301; Sinclair v. Gunzenhouse (1912), 179 Ind. 78, 112, 98 N. E. 37, 100 N. E. 376.
Appellant says a suit to quiet title is conclusive only as to matters capable of being controverted at the time, and based on conditions then existing, and that it cannot operate as an estoppel as to after occurring facts not involved in the suit and giving rise to new rights. But the claim which appellant now makes to the real estate involved, was capable of being controverted at the time of the former action. In that action the plaintiff, who was appellees’ grantor, averred that he was the owner of the real estate in fee simple and that appellant was claiming some title or interest in the real estate adverse to the plaintiff’s rights which claim was without right and unfounded. The action was in harmony with §1116 Burns 1914, §1070 R. S. 1881, and it was then incumbent upon appellant to set forth such interest as she then claimed and failing so to do she was thereafter forever barred. The decree quieting title to said land adjudged that the whole interest was absolutely in appellees’ grantor and that every claim or interest, in whatever form or character, which
Appellant says that it does not appear by the answer that the alleged judgment was not appealed from or reversed or that it was á final judgment. It is not necessary that the answer should so show. This is a matter of reply. 1 Watson, Revision Works Prac. p. 447.
Appellant alleges in her reply that there was no service of summons upon her in the former suit, which was in the Rush Circuit Court, or that she ever executed a waiver of process, or that she ever entered her appearance in said suit, and says that she did not know of the pendency of said suit until long after the alleged judgment was rendered. But as aforesaid the judgment was rendered by a circuit court which is a court of general jurisdiction and, since such judgment is regular upon its face, it is valid and binding until it is set aside or annulled in an action instituted for that purpose. Appellant cannot treat the judgment here involved as invalid until she has by some affirmative proceeding known to the law set it aside. Owen County Council v. State, ex rel. (1911), 175 Ind. 610, 95 N. E. 253; Emerich v. Miller (1902), 159 Ind. 317, 64 N. E. 28.
In the last case cited the court says on page 326 that appellant’s “answer to the petition proceeds upon the theory that a party against whom a fraudulent judgment has been rendered, may ignore the judgment, though fair upon its face, for an indefinite period, and
There are no averments in the reply as to what, if anything, the record shows in said cause in the Rush Circuit Court as to the question of notice or service thereof or the appearance if any by appellant. Without such averments the reply is insufficient. Exchange Bank v. Ault (1885), 102 Ind. 322, 1 N. E. 562; Cassady v. Miller (1886), 106 Ind. 69, 71, 5 N. E. 713; Baltimore, etc., R. Co. v. North (1885), 103 Ind. 486, 492, 3 N. E. 144; Long v. Ruch, supra; First National Bank v. Hanna (1894), 12 Ind. App. 240, 39 N. E. 1054; Denton v. Arnold (1898), 151 Ind. 188, 196, 51 N. E. 240.
It appears by the said paragraph of reply that appellant sought to impeach and vacate the judgment in the former action by alleging facts not apparent on the face of the record but facts that are wholly dehors the record. Such an attack is a collateral attack, and is not available to appellant for the purpose of impeaching in this action the judgment of the court in a prior action involving the same question. Reid v. Mitchell (1884), 93 Ind. 469; Walker v. Hill (1887), 111 Ind. 223, 12 N. E. 387; Lewis v. Rowland (1892), 131 Ind. 103, 29 N. E. 922; Spencer v. Spencer (1903), 31 Ind. App. 321, 330, 67 N. E. 1018, 99 Am. St. 260.
But independent of the question of collateral attack, it appears by the record in this case that the former action was by George Hulley in the year 1907, at which time he obtained' a judgment against appellant quieting his title to the real estate here involved, the record showing a waiver of process and appearance by appellant. It is averred in the complaint
It clearly appears from the foregoing that the court committed no error in sustaining the demurrer to the said paragraph of reply. What we have said with reference to the demurrer to the first paragraph of the answer to the first paragraph of complaint and with reference to the first paragraph of reply to the first paragraph of answer to the first paragraph of complaint disposes of the questions on other demurrers presented. The answers were each good; the replies were each bad, and the court committed no error in its rulings with reference thereto.
We find no error in the record. The judgment is affirmed.