Clark v. Clark

• Decision Date: 27 June 1930
• Docket Number: 25,624
• Citation: 172 N.E. 124,202 Ind. 104
• Parties: Clark v. Clark
• Court: Indiana Supreme Court

172 N.E. 124

202 Ind. 104

Clark v. Clark

No. 25,624

Supreme Court of Indiana

June 27, 1930

From Marion Superior Court (A40,948); Joseph M. Milner, Judge.

Suit by Milton H. Clark against Chlo Clark to set aside and vacate a judgment in an action for support. From a judgment for defendant, the plaintiff appealed.

Affirmed.

Myron C. Jenkins, for appellant.

Charles T. Kaelin and Hugh D. Wickens, for appellee.

Willoughby C. J. Myers, J., not participating.

OPINION

Willoughby, C. J.

This suit was commenced by appellant to set aside and vacate a judgment of $ 3,000, obtained by appellee, Chlo Clark, as the wife of Milton H. Clark. The judgment was obtained in the superior court of Marion County, and an order of said court required the payment of said sum and costs by Rosa Logan and John Doles, who held funds of said appellant as his trustee under the will of Thomas J. Clark, deceased.

The appellant's complaint is in three paragraphs. The first paragraph of the complaint declares that the judgment against appellant was taken and entered by default and without jurisdiction of appellant; that appellant was a nonresident of the State of Indiana, without appearance in person or by attorney at the said cause, and without process having been served on him within the State of Indiana; and that said judgment is in personam, and without due process of law.

The second paragraph of complaint declares that the judgment against appellant was without due process of law, in violation of the Constitution of the United States, and in violation of the law of the State of Indiana.

The third paragraph of complaint alleges that, on March 7, 1927 the defendant brought her action against this plaintiff to recover judgment for support against Milton H. Clark and Rosa Logan and John Doles, as trustees under the will of Thomas J. Clark, deceased, and for payment of money in satisfaction of such judgment. That, on June 1, 1927, in the superior court of Marion County, said defendant, Chlo Clark, recovered judgment against this plaintiff in the sum of $ 3,000, for support, and procured an order against the defendants Rosa Logan and John Doles, trustees, for payment and satisfaction of said judgment from property and funds in said trustees' hands, as such trustees, belonging to and the property of Milton H. Clark. That a copy of the affidavit for publication of notice to Milton H. Clark, defendant in said action, is filed herewith and made a part of this complaint. That copy of the notice to nonresident by Chlo Clark, plaintiff in said cause in which said judgment was obtained and order made, is filed and made a part of the complaint. It also alleges there was error of law, in this, said court did not have jurisdiction of this plaintiff at the time said hearing was had, for the following reasons: That said plaintiff was not a resident of said Marion County, Indiana, nor a resident of the State of Indiana, at the time of the hearing, rendering of said judgment, and making said order; that there was no appearance for said plaintiff in said action, in person, or by attorney, at the time of the hearing of said cause, the rendering of said judgment, and making said order; that said plaintiff has not had residence in said Marion County, Indiana, since prior to the filing of the action of said Chlo Clark in which said judgment and order were obtained. That said judgment and order were in default of defendant's appearance, in person, or by attorney, and without process having been served on him in said cause, and a non-resident of the State of Indiana. That said judgment is in personam and without due process of law under the provision of Article 5, in amendment of the Constitution of the United States, being § 29 Burns 1926. That the title to the act of 1923, Acts 1923 p. 190, is indefinite, uncertain, and does not indicate or in any way express the purpose or proceeding as to husband and wife that is to be heard and determined by the court. The complaint also shows that the affidavit for publication was made as to the husband and summons served on Rosa Logan and John Doles by personal service in the State of Indiana. That notice to nonresident Milton H. Clark was given by publication.

The defendant Chlo Clark demurred separately and severally to each paragraph of the complaint, and says that none of said paragraphs of complaint states facts sufficient to constitute any cause of action against this defendant, or any cause for vacating the judgment therein referred to.

This demurrer was sustained to each of said paragraphs of complaint, and the record shows that said demurrer having been sustained and the plaintiff failing and refusing to amend his complaint, abides the ruling of the court, and the court rendered judgment on the demurrer as follows: "It is therefore considered and adjudged by the court that the plaintiff take nothing by this action, and that the defendant recover of the plaintiff her costs and charges in this cause laid out and expended, to which the plaintiff excepts. And said plaintiff now prays an appeal to the Supreme Court of Indiana, which is granted on the filing of an appeal bond in the sum of $ 6,000."

The appellant assigns error in sustaining the demurrer to each paragraph of the complaint.

In the complaint of appellant to vacate appellee's judgment there is no averment or even suggestion that said judgment was procured by any fraud, or in any other improper manner, or that the judgment is unjust, or that appellant has any defense to appellee's action in which the judgment was rendered. It is not denied that he was guilty of failure to support his wife, that he owned the property, or that the same was in the custody of Doles and Logan, in the State of Indiana, as trustees. It is not denied that process was properly served upon the trustees having control and custody of appellant's property, and no excuse or reason is shown for the failure of appellant or Doles and Logan to appear at the time of the trial. It is not even averred that appellant did not have actual knowledge of the pendency of the suit in which the judgment was rendered, the day of the trial, and an opportunity to be present at said time, and that he has used diligence or been free from laches.

Appellee's judgment sought to be vacated was rendered by a court of superior general jurisdiction, having jurisdiction of the subject-matter of the action. This judgment is sought to be vacated, not because of fraud, but solely because it is claimed that the court did not have jurisdiction of the defendant therein, by reason of lack of notice. In support of this objection, appellant has only pleaded matters outside the record, and has not alleged that the record shows or does not show anything with reference to the alleged want of jurisdiction. The Marion Superior Court has jurisdiction, original and concurrent with the circuit court in said county, in all civil cases except slander, and except such causes of which the common pleas court on February 15, 1871, had original exclusive jurisdiction. § 1536 Burns 1926.

It is not averred in appellant's complaint that the record in the support action shows service of process or that it does not show any such service. His complaint is wholly silent as to anything in the record in the support action concerning his appearance in that cause. It does not show that he did not file an answer or otherwise appear therein and that he did not consent to the judgment.

In her complaint for support, after showing the property and credits of her defendant husband were in the hands of the other defendants in the State of Indiana, appellee prayed judgment against him of said sum of $ 3,000, the same to be paid out of the property of said defendant above described. The judgment in the suit for support is as follows: "It is further ordered and decreed by the court that said plaintiff recover from said Milton H. Clark, judgment for $ 3,000 and costs and that said $ 3,000 and costs shall be paid by defendants Rosa Logan and John Doles, trustees under the last will and testament of Thomas J. Clark, deceased, from any funds or credits in their hands and from any sum owing by them to said Milton H. Clark, or in which, or the proceeds of which, he has any interest, and said Rosa Logan and John Doles, trustees, as aforesaid, are ordered to apply to the payment and satisfaction of plaintiff's said judgment and costs without relief, all funds or credits in their hands, as such trustees, belonging to said defendant, Milton H. Clark, and all sums owing by said trustees to said defendant Clark, and apply to the payment of said judgment all property and the proceeds of all property in their possession or control as such trustees, belonging to said Milton H. Clark, or in which he has any interest, said payments to be made to the Clerk of this court and said defendants trustees shall file with the Clerk of this court a duly verified statement by them showing in detail all such funds, credits, indebtedness or property in their hands or owing by them as such trustees to said Milton H. Clark, and the application thereof. And said defendant trustees are forbidden to pay to said defendant, Milton H. Clark, any such funds, credits or indebtedness or to transfer or in any way dispose of said property funds or credits except to apply the same as herein ordered."

This is not a judgment in personam, but a judgment in rem. Comstock v. Brandon (1901), 27 Ind.App. 475, 61 N.E. 686; Cooper v. Reynolds (1870), 77 U.S. (10 Wall.) 308, 19 L.Ed. 931; Heidritter v. Elizabeth Oil-Cloth Co. (1884), 112 U.S. 294, 5 S.Ct. 135, 28 L.Ed. 729.

Complaints to review judgments must be sufficient without reference to exhibits filed therewith. Wabash R. Co. v. Young (...