Miedreich v. Lauenstein
| Decision Date | 15 January 1909 |
| Docket Number | 21,137 |
| Citation | 86 N.E. 963,172 Ind. 140 |
| Parties | Miedreich v. Lauenstein |
| Court | Indiana Supreme Court |
Rehearing Denied April 8, 1909, Reported at: 172 Ind. 140 at 145.
From Superior Court of Vanderburgh County; Alexander Gilchrist Judge.
Suit by Frances A. Miedreich against Constanze Lauenstein. From a judgment for defendant, plaintiff appeals.
Affirmed.
William P. Miedreich and John Brownlee, for appellant.
Peter Maier, for appellee.
This was a suit by appellant against appellee, in the Superior Court of Vanderburgh county, to vacate a decree of foreclosure of a mortgage and sale of her property, for an accounting for rents, and to be permitted to redeem, on the ground that she had no notice of the original suit, and that her property had been taken without any notice, or opportunity to be heard. Both parties have treated this suit as one arising under the provisions of the 14th amendment to the federal Constitution, and as presenting the questions of due process of law and rights guaranteed by article 1, § 21, of the state Constitution. A demurrer by appellee, for want of facts to constitute a cause of action, was sustained to the fourth paragraph of complaint an exception was reserved, and that ruling is assigned as error here. The fourth paragraph of complaint, so far as the grounds of relief thereby sought are concerned, is predicated on the alleged fact that when the original foreclosure proceedings were had, under which sale of her property was made, appellant was twelve years of age, and not a resident of Vanderburgh county, where the suit was brought, but a resident of Gibson county, and had been for many years; that she was not summoned to appear and defend her interests in said suit; that she had no knowledge of the pendency of the suit, did not waive service of process, nor did any one for her, or in her behalf, or by her consent, enter any appearance for her; that she was not amenable to the jurisdiction of the sheriff of Vanderburgh county, but, notwithstanding the fact that she was not served with process, the sheriff of Vanderburgh county made a false return of a summons, and the court was wrongfully imposed upon by such false return, and, being thus falsely advised, at the instance of attorneys for the plaintiff in the cause, appointed for her a guardian ad litem, who filed an answer for her; that a decree was thereupon entered and her property sold to the plaintiff in the suit. Direct privity was shown between the original plaintiff and the appellee here, and timely application for relief.
It is settled in this jurisdiction that such a suit may be maintained as a direct attack upon the judgment, certainly so if it can be said to amount to a charge of fraud in procuring notice or obtaining the judgment. Frankel v. Garrard (1903), 160 Ind. 209, 66 N.E. 687; State v. Hindman (1903), 159 Ind. 586, 65 N.E. 911; Cotterell v. Koon (1898), 151 Ind. 182, 51 N.E. 235; Asbury v. Frisz (1897), 148 Ind. 513, 47 N.E. 328; Kirby v. Kirby (1895), 142 Ind. 419, 41 N.E. 809; Thompson v. McCorkle (1894), 136 Ind. 484, 34 N.E. 813; Dobbins v. McNamara (1887), 113 Ind. 54, 14 N.E. 887.
The paragraph is silent as to what the record shows on the question of notice to appellant. In case the complaint could not be said to aver fraud in procuring the process or judgment, a different question would be presented, for in such case there must be an averment as to what the record shows on the question of notice. Chicago, etc., R. Co. v. Grantham (1905), 165 Ind. 279, 75 N.E. 265; Layman v. Hughes (1899), 152 Ind. 484, 51 N.E. 1058; Runner v. Scott (1898), 150 Ind. 441, 50 N.E. 479; Bailey v. Rinker (1896), 146 Ind. 129, 45 N.E. 38.
The allegations do not present a question of fraudulent conduct on the part of the appellee's predecessor in title, or of her attorneys in procuring a false return, or participation in a fraud upon the court, which is an acknowledged ground of interference of a court of equity. Frankel v. Garrard, supra; Brown v. Eaton (1884), 98 Ind. 591; Cavanaugh v. Smith (1882), 84 Ind. 380; Graham v. Loh (1904), 32 Ind.App. 183, 69 N.E. 474.
The question is then presented whether the allegations, that appellant was a minor, was not a resident of Vanderburgh county, was a resident of Gibson county, and had been for many years, that no summons was served on her, that she had no knowledge of the proceedings, did not waive service, nor did any one for her or in her behalf or with her consent enter appearance for her, that she was not amenable to the jurisdiction of the sheriff of Vanderburgh county, that, notwithstanding that she was not served with process, the sheriff of Vanderburgh county made a false return of a summons, and the court was wrongfully imposed upon by such false return, and, being thus falsely advised at the instance of appellant's attorneys, appointed a guardian ad litem for her--constitute a charge of fraud. The return was regular on its face. The court had jurisdiction of the subject-matter, and apparently jurisdiction of the person of appellant. The false return was not procured by the fraud, collusion or imposition of the plaintiff or his attorneys. It is not alleged that either knew of the...
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