Statelar's Administrator v. Sample's Administrator, 29 Ind. 315

29 Ind. 315 | Ind. | 1868

Elliott, J.

Suit by Treadway, administrator of William <G. Statelar, -deceased, against Sehloss, administrator of Andrew Sample, deceased. A demurrer was sustained to the complaint because it did not state sufficient facts to constitute a cause of action, and judgment for the defendant. Treadway excepted to the ruling of the court, and appeals.

The allegations of the complaint are as follows: “ The plaintiff, Milton Treadway, administrator of the estate of William O. Statelar, deceased, complains of defendant Moses A. Sehloss, administrator of the estate of Andrew Sample, deceased, and says that on the-day of-, 186-, -one Joseph JE. Mitchell filed in this court a pretended claim against the estate of said Statelar; that the claim was not allowed by plaintiff’, and the same was put upon the issue docket for trial at the July term, 1865, of this court; that at said term, said Mitchell made a false and pretended transfer of said claim, pendente lite, to Andrew Sample, not for the purpose of vesting the title to said claim, or the proceeds thereof, in him, but for the purpose of its appearing upon the docket that Sample was the owner thereof, and thereby to enable said Mitchell to testify as a witness in his own behalf. Plaintiff' avers that he had no knowledge at the trial but that said Sample was the real owner of said claim. Said claim came on for trial in this court at the July term, 1865, and at said trial said Mitchell and Sample were sworn and examined as witnesses in said cause; and said Mitchell and Sample corruptly confederated together for the purpose of defrauding the estate of said. Statelar by getting said claim allowed by the court in the name of said Sample, for the sole use and benefit of said Mitchell, said Sample having- no> interest therein.. That for the purpose of carrying out said conspiracy and confederation, said Mitchell and Sample testified that said Sample■ owned said claim; that he paid said Mitchell two hundred dollars in greenbacks therefor, and that Mitchell had no interest whatever in the same; that Sample-was, in pursuance of his purchase thereof, and payment therefor, as above, the bona fide owner thereof; and plaintiff then being unable to' controvert said proof, the court, allowed the claim in the name and for the benefit of said Andrew Sample. That plaintiff, since said allowance was made, to-wit, at the last term of this court, discovered and learned the fact that said Sample had not, at the time of the allowance aforesaid, nor has had at any time, any interest whatever in said claim, or any part thereof, but that he falsely, fraudulently and corruptly conspired and confederated with said Mitchell to swear said claim through to allowance; that through said conspiracy and confederation, said allowance was made against said estate, which, without said conspiracy, could and would not have been allowed by the court. That said Sample died intestate, and defendant is his administrator. That neither Sample, nor his^estate, ever had any interest whatever in said claim or allowance, and plaintiff’s estate has been damaged, by said fraudulent-conspiracy, to the amount of said allowance', interest and costs, and plaintiff therefore asks that said judgment be, in all things, set aside and annulled, and for all proper redress.”

The complaint is a novel one. It does not conform to any provision of the statute authorizing the granting of new trials, nor is a new trial asked. It does not contain the /requisite statements of a complaint for a review. Indeed, it is not claimed by the appellant’s counsel that it was intended either as a proceeding for a review or a new trial; but it is claimed to be an original complaint to vacate the judgment for fraud, based on the broad principles of equity. It does not state the substance, character or nature of the claim on which the judgment was rendered; nor does it allege that, in fact, it was not a just aud valid claim against the estate of the appellant’s intestate. The only ground of complaint seems to be that the assignment of the claim by Mitchell to Sample was without consideration, and made fox* the fx’audulent purpose of enabling Mitchell to become a witness, he being in fact the owner of the claim. If the claim was a valid one, then the estate cannot be said to have been injured by the alleged fraud. The complaint does not present such a case as to justify an appeal to a court of equity to vacate the judgment.

W. Herrod, W. W. Herrod, S. Stansifer and F. Winter, for appellant.

"We think the court did right iix sustaining the demurrer, and the judgment must therefore be affirmed.

The judgment is affirmed, with costs, to be levied of the property of the decedent, &c.'