Brokaw v. Brokaw

• Decision Date: 19 November 1934
• Docket Number: No. 14433.,14433.
• Parties: BROKAW et al. v. BROKAW.
• Court: Indiana Appellate Court

99 Ind.App. 385

192 N.E. 728

BROKAW et al.

v.BROKAW.

No. 14433.

Appellate Court of Indiana, in Banc.

Nov. 19, 1934.

Appeal from Superior Court, Allen County; Charles J. Ryan, Judge.

Suit by Joseph A. Brokaw and another against Gladys Piatt Brokaw. From an adverse judgment, complainants appeal.

Affirmed.

See, also, 187 N. E. 691.

Theodore Wood, of Angola, and H. W. Mountz, of Garrett, for appellants.

H. C. Springer, of Butler, Maurice McClew, of Angola, and Atkinson & Husselman, of Auburn, for appellee.

SMITH, presiding Judge.

This is an appeal from a judgment rendered against appellants upon the sustaining of a demurrer to appellants' complaint and their refusal to plead further.

The questions presented are upon the action of the lower court in sustaining the demurrer of appellee to appellants' complaint this action of the lower court being the only error assigned for reversal.

The complaint, which is in one paragraph, alleges in substance that appellants are the surviving brother and sister of one Milton J. Brokaw, deceased, who died intestate in 1928; that appellee claims to be the lawful wife of said Milton J. Brokaw, and as his widow to have inherited all of his property.

It is further alleged that appellee, prior to the 18th day of August, 1917, was lawfully married to one Kenneth R. Piatt; that thereafter, on the 7th day of May, 1919, on complaint filed by appellee, a judgment and decree of divorce was rendered by the Allen superior court in favor of appellee and against said Kenneth R. Piatt; that, after the filing of the complaint by appellee on August 18, 1917, no proceedings of any kind were had or taken in said cause, and that there were no entries, orders, findings, or decrees of any kind made or taken therein until the 7th day of May, 1919, when the said cause was submitted to the Allen superior court for hearing and judgment, without the issuance of any summons or any writ for the said Kenneth R. Piatt, and without the publication or the giving of any notice whatever; and that thereupon the judge of the Allen superior court did on said day enter a finding, decree, and judgment annulling the marriage contract between the appellee and the said Kenneth R. Piatt; that said finding, judgment, and decree of divorce entered in said court is the only finding, judgment, and decree of any kind purporting to dissolve the marriage relation of the appellee and the said Kenneth R. Piatt; that, at the time of filing of the complaint for divorce by appellee from said Piatt, the appellee directed by instructions written upon the complaint that the clerk of the court should not issue any summons or any writ for the said Piatt; that no summons or other process was then or at any time thereafter issued by the clerk of said court, or by any other officer or persons, or that no notice of any kind, either by publication or otherwise, was ever given to said Piatt of the filing of said complaint; that the affidavit required by statute to be filed with the complaint of said appellee stated “that on the 16th day of August, 1917,” she was and had been a bona fide resident of the city of Fort Wayne, Allen county, Ind.; that the complaint together with this affidavit was filed on the 18th day of August, 1917, and that at no time was any other affidavit or proof made showing the residence of appellee for more than two years before the filing of the complaint.

The complaint further alleges that the Allen superior court did not at any time have jurisdiction over said Piatt, and did not obtain jurisdiction of the parties in said proceedings, and that said proceedings were wholly void; that the decree of divorce from said Piatt was and is void and of no effect, and the marriage relation between appellee and said Piatt was not dissolved; that the appellee remained and is the lawful wife of said Piatt, and her subsequent marriage to Milton J. Brokaw is void; and that appellee is not his lawful widow.

It is further alleged that appellants “are the sole and only heirs at law of the said Milton J. Brokaw deceased and that as such they are directly interested in the validity of the said decree of divorce entered in this court as aforesaid, and they are entitled to have the said (decree) declared null and void and set aside.”

Then follows a prayer that the decree and judgment entered by the Allen superior court in the divorce action of appellee against said Piatt be declared null and void and set aside.

The demurrer of the appellee to this complaint challenges the sufficiency thereof, and sets forth certain memoranda, that which is necessary to be considered being as follows: (1) That this is an action to set aside a decree of divorce, in which appellee was plaintiff, and one Piatt was defendant, and that the appellants or either of them were not parties to the original action, and therefore have no interest in said judgment, and are not proper parties to bring this action; (2) that the complaint shows upon its face that the action is barred by the statute of limitations; (3) substantially the same question is raised as in specification No. 2, that appellants were not par...