143 Ind. 218 | Ind. | 1896
The appellant, as the guardian of Catherine DeLong, a person of unsound mind, instituted this action under section 399, R. S. 1894 (section 396, R. S. 1881), to be relieved from a judgment alleged to have been taken against a former guardian of his ward through excusable neglect, and .to secure the opportunity to present a defense to the action. A demurrer was sustained to the complaint, and the only question presented for the decision of this court is the sufficiency of the facts therein to entitle the appellant to the relief demanded under this section of the statute.
A substantial statement of the facts as set forth in the complaint is as follows :
Appellant’s ward in 1886 was, by the White Circuit Court, adjudged to be a person of unsound mind, and one James Vinson was by that court appointed her guardian; that at that time she was the owner of real estate situated in White county, Indiana, of the value of $2,500.00; that in 1890 said guardian, under the order of the court, borrowed for the benefit of his ward the sum of $1,012.00 of the appellees, Crowell and Heiny, and executed to them notes and a mortgage upon the lands of his ward to secure said loan; that thereafter Vinson resigned his said trust and Martin E. Hughes was by the court appointed his successor. In September, 1892, in the White Circuit Court, appellees, Crowell and Heiny, commenced an action to foreclose their mortgage, making said Hughes, as the guardian of Catherine DeLong, and said ward and other persons parties thereto; that her said guardian was served with a summons to appear to said action, but that said ward,
A copy of the judgment in the foreclosure suit is filed with the complaint and made a part thereof. It is further alleged that said ward has a just and meritorious defense to said foreclosure suit, in this, that said mortgage was void, for the reason that the White Circuit Court had no power to authorize the guardian to mortgage the lands of the ward to secure said loan, and that the money derived by the guardian upon the same was not used for her benefit. The copy of the judgment of the foreclosure proceedings shows that all of the defendants were duly served with process for more than ten days prior to the first judicial day of the term of court; that Martin E. Hughes, as the guardian of Catherine DeLong, and Catherine DeLong also appeared to the action by Guthrie and Bushnell, attorneys, and demurred to the complaint, which demurrer was over
It is obvious, we think, that in view of the facts as they appear in the complaint and the copy of the foreclosure proceedings, the appellant cannot secure the relief sought to be obtained by him, under section 399, supra, upon the grounds of excusable neglect, either in his predecessor or in that of his ward. The latter, as the facts disclose, was insane and under guardianship at the time the action to foreclose was commenced, and for this reason she was neither a proper nor necessary party thereto. Vogel v. Vogler, 78 Ind. 353; Ray, Rec., v. McGinnis, Guar., 81 Ind. 451. Therefore the alleged facts that she was not served with summons to appear to the action, nor did not authorize an appearance by the attorneys in question, may properly be rejected as immaterial.
The theory of the complaint in the main is seemingly based upon the excusable neglect of the ward. As we have seen, she was insane and under guardianship, and under such circumstances she was neither a necessary or proper party defendant; and as her guardian was a party to the action, she in no way was required to appear and plead thereto, and the court on its own
Under such circumstances, where the record in the proceedings shows that a party to the action appeared by
It follows that the complaint was not sufficient in facts, and the demurrer was properly sustained.
Judgment affirmed.