Cassady v. Miller

• Decision Date: 13 March 1886
• Docket Number: 11,001
• Citation: 5 N.E. 713,106 Ind. 69
• Parties: Cassady et al. v. Miller et al
• Court: Indiana Supreme Court

5 N.E. 713

106 Ind. 69

Cassady et al. v. Miller et al

No. 11,001

Supreme Court of Indiana

March 13, 1886

From the Vigo Circuit Court.

The judgment is affirmed, with costs.

B. E Rhoads, J. M. Shelton and H. C. Nevitt, for appellants.

S. C Davis and S. B. Davis, for appellees.

OPINION

Howk J.

The only error assigned by appellants, the plaintiffs below, is the sustaining of appellees' demurrer, for the alleged want of sufficient facts, to their complaint.

The appellants, Melissa and Burton Cassady, alleged in their complaint, that on the 26th day of April, 1877, Emma Martin since deceased, recovered in the Vigo Circuit Court a judgment against Sydney B. Davis, administrator of the estate of Adaline Cassady, for the sum of $ 181.80, and costs of suit, a copy of which judgment was filed with the complaint as a part thereof; that from an inspection of such judgment it would be seen that the name of appellant Melissa Cassady appeared as a defendant in such cause, or rather that Sydney B. Davis was her administrator, as well as the administrator of Adaline Cassady; that the original papers in such cause had been lost or mislaid, so that the same could not be produced, nor copies thereof. And appellant Melissa Cassady said that she was not a party to such suit, that she was not served with process therein, and did not know of the rendition of such judgment, nor of its existence, until the day of ----- 1881.

And appellants said that Melissa Cassady was living at the time of the rendition of such judgment, and that Sydney B. Davis was not her administrator, and that such judgment was not rendered against her, in fact, but only against Sydney B. Davis, as administrator of Adaline Cassady, as would appear from an inspection thereof, but the same is so worded as to leave, in the minds of some, doubts upon that question, and that the same was a cloud upon the real estate thereinafter described; that appellants were informed that the appellees claimed that such judgment was a judgment against Melissa Cassady, and binding on her, and a lien upon such real estate. And appellants further said that Emma Martin was then dead; that no administrator of her estate had ever been appointed in this State; that she resided, while living, in the State of Illinois, and there died; that her estate was not indebted, and her heirs at law were her representatives, and had taken possession of her estate and disposed of the same, or held it for their own use and benefit; that the appellees, except Jacob F. Miller, James Cox and John Cleary, were the sole heirs and distributees at law of Emma Martin, deceased; and that appellees Miller and Cox, late partners in business under the firm name of Miller & Cox, claimed to own such judgment by assignment from their co-appellees, the heirs at law of Emma Martin, deceased.

Appellants further said that Melissa Cassady inherited certain described real estate, in Vigo county, from her deceased father, and that afterwards, on August 14th, 1879, she conveyed the same by warranty deed to her co-appellant, Burton Cassady, which deed was recorded in the recorder's office of Vigo county, on September 22d, 1880; and that such judgment was a cloud upon the title to such real estate, which ought to be removed; that appellees Miller and Cox, on February 6th, 1883, sued out an execution on such judgment, and placed such execution in the hands of appellee Cleary, sheriff of such county, who had levied upon and would, if not enjoined, sell certain personal property of appellant Melissa Cassady to satisfy such judgment and execution. Wherefore appellants prayed that such judgment be declared null, void and of no effect as against Melissa Cassady, and that appellees Miller and Cox, and sheriff Cleary, be enjoined from collecting such judgment and execution, etc.

We are of opinion that the court committed no...