76 Ind. 123 | Ind. | 1881
Complaint in the usual form, for the recovery of the possession of real estate. Two of the defendants made default. The others answered by a general denial. Trial by the court; finding and judgment for the defendants. The plaintiff appeals, and assigns error upon the overruling of his motion for a new trial, the grounds oi which motion are, that the finding is contrary to the law and to the evidence, and that the court erred in admitting in evidence the record of the decree of divorce and allowance of alimony in the case of Charlotte Sowders v. Frederick Sowders, and the sheriff’s deed of the land in controversy.
We have no brief from the appellee. The proof showed that the plaintiff purchased the land, and received a warranty deed therefor, on the 24th day of February, 1847, from Jacob Dennis, who was then in actual possession, and delivered the possession to the plaintiff. The plaintiff occupied until February, 1874, when he went away, leaving his family in the possession. The plaintiff abandoned his family, left the State, and remained away, having no communication with, and hearing nothing from, his wife or children.
The appellant objected and excepted to the introduction in evidence of the judgment for alimony, the execution issued thereon, the return of the sheriff’s sale, and the sheriff’s deed, on the ground that the judgment and execution were on their face void.
The objection should have been sustained. A valid personal judgment can not be rendered in a case where the notice to the defendant is by publication only, and there has been no appearance by or on behalf of the defendant. Beard v. Beard, 21 Ind. 321; Lytle v. Lytle, 48 Ind. 200; Middleworth v. McDowell, 49 Ind. 386.
The plaintiff made clear and undisputed proof of title in himself, and the claim of title set up by the appellees can not be upheld. The appellant was not perhaps a non-resident when the divorce suit was instituted, and might have been served by copy of the summons left at his last and usual place of residence, but this was not done; and if he was such resident, and to be treated as temporarily absent,
The judgment is reversed, with costs»