Bradford v. McBride
| Decision Date | 23 November 1911 |
| Docket Number | 7,876 |
| Parties | BRADFORD v. MCBRIDE ET AL |
| Court | Indiana Appellate Court |
Rehearing denied March 6, 1912. Transfer denied June 6, 1912.
From Lake Circuit Court; Willis C. McMahan, Judge.
Motion by Henry A. Bradford to modify a judgment rendered in an action brought by Lillie S. Baker against said Henry A Bradford, Mathew McBride and others. From a judgment overruling the motion, Henry A. Bradford appeals.
Affirmed.
Adrian L. Courtright, Augustin Boice, Lasley & Lasley, Ansel M Lasley and Frank A. Lasley, for appellant.
Frank B. Pattee, Frank W. Swett and Mary M. Bartelme, for appellees.
This is an appeal from a judgment of the lower court on a motion, made by appellant, to modify the judgment in a cause wherein Lillie S. Baker was plaintiff, and appellant, appellees and numerous other parties were defendants.
The suit brought by Mrs. Baker was one to quiet title to lots ten and eleven in block five of an addition to the city of Tolleston, Indiana. Appellees O'Dell and Mathews each filed separate cross-complaints, and appellees Wegg and McBride filed a joint cross-complaint. To each of said cross-complaints plaintiff and defendants to the original complaint, other than appellant, were made defendants, but appellant was not made a party to either of said cross-complaints. Each of said cross-complaints was an action to quiet title to separate and independent lots in said addition to said city, and neither of the lots mentioned or involved in the original action was mentioned therein. On issues formed there was a trial and judgment for the plaintiff upon her complaint and in favor of said cross-complainants on their respective cross-complaints.
This judgment was rendered on May 27, 1909, being the twenty-eighth judicial day of the April term of said court, and quieted the title in and to each lot claimed by the plaintiff and by the respective cross-complainants. On October 9, 1909, being the thirtieth day of the September term of said Lake Circuit Court, said cause was, on motion of appellant, reinstated on the docket, and appellant then appeared specially, and moved that the court modify said judgment so as to eliminate that part of said judgment which quieted title in the respective cross-complainants to the particular lots described in their respective cross-complaints, on the ground that such lots were not described in, or involved in the original complaint, and that the court therefore did not have jurisdiction to render that part of said judgment involving such lots.
Notice of said motion to modify said judgment was served on each of said cross-complainants, November 9, 1909, but, was not served on plaintiff nor any of the defendants to said cross-complaint.
The attorneys for said cross-complainants on September 29, 1910, appeared to said motion, and the court, after hearing the same, overruled said motion and refused to modify said judgment, to which ruling of the court appellant excepted, and from this decision appellant appealed.
The transcript and assignment of errors was filed herein December 24, 1910. Appellant makes each of said cross-complainants appellees to this appeal, they being the only parties on whom he served notice of his motion to modify said judgment. Appellees move to dismiss the appeal; the grounds of which motion are, in substance, as follows: (1) This court has no jurisdiction of the appeal because all of the parties in whose favor the judgment below was rendered and who are affected by the judgment entered in said court, are not made parties to nor named in the assignment of errors. (2) Because said motion was not made until one term after final judgment had been entered and the cause disposed of in the court below, and such court had no jurisdiction to take any action whatever in the case at the time the motion to modify was filed. (3) Because appellant, Henry A. Bradford, is not named as a cross-defendant in any of the cross-complaints on which decrees were taken against which he bases his ground of complaint, and he is not therefore affected or bound thereby.
In his motion to modify said judgment, appellant sets out the facts above indicated as disclosed by the record, and avers that he is the owner of the lots described in the several cross-complaints, title to which was quieted in said respective cross-complainants.
It is contended by appellees that appellant was not a party to either of said cross-complaints on which that part of the judgment which he seeks to strike out was rendered, and was not affected thereby, and is, therefore, in no position to prosecute this appeal.
In answer to this contention appellant insists that said judgment, in so far as it quieted title in the cross-complainants to the respective lots described in their said cross-complaints, was void, and that on account of his being a defendant to the original suit brought by Mrs. Baker a cloud was by such judgment cast on his title to said lots, and that although he was not a party defendant to either of said cross-complaints he was entitled to ask the court to remove said cloud by striking out such parts of such judgment.
There is authority to the effect that one may invoke the jurisdiction of the court in certain instances to obtain relief even from void judgments, but so far as we have been able to find, these cases are all cases where such judgments were in some way being attempted to be enforced or some right or claim was being asserted under such judgment against the party seeking relief therefrom. In view, however, of the conclusion reached in this case, this question is not important.
In support of his contention, that the parts of said judgment which by his motion he sought to strike out were void appellant asserts that ...
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