58 Ind. App. 253 | Ind. Ct. App. | 1914
On December 22, 1905, Hannah M. Poster, appellee, obtained a decree in the Lake Circuit Court quieting her title to certain real estate situated in that county. In that action it was made to appear by proper affidavit, that Josephine E. Young and a number of other defendants were nonresidents of the State of Indiana, so that constructive notice alone of the pendency of the suit, was given them, through publication in a newspaper of general circulation published in Lake County. On December 21, 1910, these appellants, defendants in the original suit, filed their several motions and applications to open up the judgment obtained against them by default and to permit them to defend, because of the fact that such judgment had been rendered against them without other notice than by publication. They also presented a full answer to the original complaint. When the said several applications and answers were filed, it was ordered by the court that each of the appellants give appellee, the original plaintiff, personal notice of the filing and hearing of his application. Later, on March 3, 1911, it appearing that the order of the court as to notice had not been complied with and it further appearing that said original plaintiff in the former suit was a nonresident of this State, it was ordered by the court that notice of the pendency of the several applications above mentioned be given her by publication for three successive issues in some weekly newspaper of general circulation. Still later, on May 5, 1911, certain of appellants made proper proof of service of notice by publication as required by the court’s order. On May 26, 1911, appellee, the original plaintiff, filed her demurrer to the said several applications, for want of facts, and on October 7, 1911, the aforesaid démurrers
Appellants claim that since they filed their applications to open up the judgment and obtained an order from the judge of the Lake Circuit Court, directing them to give personal notice to the plaintiff in the original suit of the pendency of such applications within five years from and after the date of the rendition of such judgment, they have brought themselves wholly within the' provisions of §§627, 628 Burns 1914, §§600, 601 R. S. 1881, and therefore the action of the trial court constituted reversible error.
We can not agree with appellants that appellee by appearing to the several petitions after the expiration of the limited period of five years waived the required notice and thereby gave the trial court jurisdiction. At the time appellee’s attorneys filed a demurrer to the motions of appellant, the court did not have jurisdiction of the subject-matter involved, and such jurisdiction could not then be conferred by the appearance or consent of the parties. Huber v. Beck (1892), 6 Ind. App. 47, 50, 32 N. E. 1025; Douglas v. Keehn (1881), 78 Ind. 199. In view of the facts as they are revealed by the record, we are satisfied that the finding and judgment o.f the lower court should be sustained.
Judgment affirmed.
Note.—Reported in 104 N. E. 769. As to statutes authorizing vacation of judgments when taken by default, see 58 Am. Dec. 392. See, also, under (1) 23 Cyc. 958, 889,; (2) 23 Cyc. 952.