OPINION
Howard, J.
This
was an action to annul a judgment. The court sustained a
demurrer to the complaint, and this is the only ruling
assigned as error.
It is
alleged in the complaint that, on April 17, 1895, the
appellee filed his verified petition in the court below,
stating therein that this appellant, "Jerome Asbury, is
a resident of Vigo county, State of Indiana, and that he is
of unsound mind and incapable of managing his own estate, and
is now temporarily in the insane hospital at Indianapolis,
Indiana, and that said Jerome Asbury draws a pension from the
United States government; that it is necessary to have
letters of guardianship and a copy thereof enclosed to and
filed in the pension office in order to properly make out his
pension voucher and draw said pension."
The complaint asked that appellant be declared of unsound
mind and incapable of managing his own estate, and that the
appellee be appointed his guardian. May 6, 1895, was fixed as
the date when the appellant should appear and answer to the
complaint. On May 9, being the 4th day of the May term, both
parties were defaulted, and the cause was dismissed at the
costs of appellee, judgment being rendered against him. Said
May term ended July 13, 1895; and it is alleged in the
complaint to annul, that "The records of said court do
not show that any steps were taken, or any proceedings had in
said cause in said court after said cause was dismissed and
judgment rendered against the petitioner therein, on the 9th
day of May, 1895, until the 28th day of September, 1895, the
same being the twenty-fourth judicial day of the September
term of said court, at which time said cause was, without
notice of any kind or character to this plaintiff, again
placed upon the probate docket of said court. There was no
written motion or complaint filed in said court on the 28th
day of September, 1895, nor at any other time, asking that
the default and judgment taken against the plaintiff therein
on May 9, 1895, be set aside, or asking that said cause be
reinstated for trial upon the docket of said court, and the
records of said court do not show the filing of any such
motion or complaint; that said court, on said 28th day of
September, 1895, assumed jurisdiction of and in said cause,
and, on its own motion without notice to this plaintiff,
reinstated it on the docket of said court; that after said
cause of action was dismissed, this plaintiff gave it no
further attention, and at no time thereafter was this
plaintiff, by summons or any other means, notified that there
would be any further proceedings of any kind or character had
in said cause. The records of said court do
not show that plaintiff had any notice of the pendency of
said action at any time after said dismissal thereof, May 9,
1895, neither were there any official returns made in or to
said court showing that this plaintiff had in any way been
served with such process or notice, and this plaintiff never
had any such notice."
The
proceedings had on September 28, 1895, being the only record
made in the case after that of May 9, 1895, are as follows:
"No. 2740. [being the same number used in the case filed
April 17, 1895]. In re Alleged Insanity of Jerome
Asbury. Pet. for App. of Guardian.
"Comes
now in open court -----, and files verified petition herein,
showing to the court that Jerome Asbury is a resident of Vigo
county, State of Indiana, and is a person of unsound mind and
incapable of managing his own estate, and prays that a
guardian be appointed for the said Jerome Asbury. And the
cause being now at issue is submitted to the court for trial,
and it appearing to the court that the said Jerome Asbury has
been duly served with process ten days before the day set for
trial, and comes now the prosecuting attorney and files
answer herein, and it being further shown to the court that
the defendant is an inmate of the Central Hospital for the
Insane at Indianapolis, Indiana, and cannot be produced in
court without injury to his health. And the court, after
having heard the evidence and being fully advised, finds that
said Jerome Asbury is a resident of Vigo county and State of
Indiana, and is a person of unsound mind and incapable of
managing his own estate. And the court now appoints Joseph W.
Frisz guardian of said Jerome Asbury, with a bond fixed at $
500.00." Judgment was thereupon entered, in accordance
with the finding.
The
only complaint ever filed in the case was that
filed April 17, 1895; and it is alleged that the said
complaint was never refiled in the court. The docket for the
September term shows that the proceedings had on September
28, 1895, when the alleged judgment was entered, were had
upon the complaint filed April 17, 1895, the return day of
which is shown to have been May 6, 1895.
It is
further alleged that on September 28, 1895, the appellee, for
the purpose of inducing the court to proceed with the trial
of the cause in the absence of this...
