Cohee v. Baer
| Decision Date | 13 January 1893 |
| Docket Number | 16,088 |
| Citation | 32 N.E. 920,134 Ind. 375 |
| Parties | Cohee v. Baer et al |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled May 18, 1893.
From the Clinton Circuit Court.
Judgment affirmed.
J. V Kent and R. W. Irwin, for appellant.
T. H Palmer and W. F. Palmer, for appellees.
The questions presented in this case arise on the rulings of the court in the sustaining of the demurrers to the second amended complaint, and to the appellant's answer to the cross-complaint.
The complaint alleges that appellant is now, and for five years last past has been, the owner in fee-simple of certain real estate, describing it; that she so owned the same on and prior to the 26th day of May, 1886; that on said date, and until the 20th day of December, 1889, she was an infant, being under twenty-one years of age; that she did not arrive at the age of twenty-one years until the date last aforesaid; that on and prior to the 26th day of May, 1886, and continually, until the 27th day of July, 1888, she was a married woman, being the wife of one Charles Slipher; that on the 24th day of August, 1886, and while she and her then husband were yet infants, John Baer, then in life, but now deceased, filed his complaint and brought his action in the Clinton Circuit Court against the appellant and her then husband, alleging therein, among other things, that the appellant had, prior to said date, entered into a contract with him (said Baer) for the erection and repair of a certain dwelling house upon the real estate aforesaid, and for certain material furnished and used therein; that afterward, at the September term, 1886, of the said Clinton Circuit Court, such proceedings were had in said court that said Baer recovered a judgment against the appellant and her husband for the sum of sixty-five dollars and costs and fifteen dollars attorney's fees, and also the foreclosure of a mechanic's lien for the sum aforesaid, and a decree of said court ordering and directing the sale of said real estate to make said sum of money and costs.
It further alleges a sale on said decree to said appellee Slipher, and the execution of a certificate and deed in pursuance thereof; that appellee Slipher took possession under the deed and has ever since held possession of the same, claiming to be the owner in pursuance of said deed, and does not hold, or claim to hold or own by any other or different title; that on the day of -----, 18--, John D. Baer departed this life at said county intestate, leaving surviving him appellee Caroline Baer, his widow and sole heir, but that appellant was, during all the time aforesaid, an infant and a married woman, and two years have not elapsed since she arrived at the age of twenty-one years.
It is further averred that appellant had no legal guardian during the time aforesaid, and that upon the trial of said cause, and during the proceedings aforesaid, no guardian ad litem was appointed to appear and defend said action for her, and that she did not appear to said cause either in person or by guardian ad litem, but that said appearance and defense was made solely by attorney; that said John D. Baer and appellant, Slipher, knew that the plaintiff and her then husband, Charles Slipher, were infants at the time of the aforesaid trial and sheriff's sale, during all the time aforesaid. Prayer was made asking that said judgment and sheriff's sale be declared void and be set aside, and for all proper relief to this complaint. Appellee Baer demurred for want of facts, and appellee Slipher demurred for the same cause. Appellee Slipher filed a cross-complaint alleging himself to be the owner of the real estate, and appellant filed an answer to the cross-complaint of Slipher, alleging the same facts as are alleged in the complaint, and Slipher demurred to the answer for want of facts. The court sustained the demurrers to the complaint and to the answer, to which rulings appellant excepted, and refusing to plead further, judgment was rendered on demurrer in favor of appellees. These rulings are assigned as errors.
As appears from the averments of the complaint, this is a proceeding to set aside the judgment and decree of foreclosure of the mechanic's lien, on the sole ground that the judgment is invalid, for the reason that the appellant appeared to the action in which the judgment was rendered and made her defense by attorney, and...
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