Cohee v. Baer

• Decision Date: 13 January 1893
• Citation: 32 N.E. 920,134 Ind. 375
• Parties: COHEE v. BAER et al.
• Court: Indiana Supreme Court

134 Ind. 375

32 N.E. 920

COHEE

v.BAER et al.

Supreme Court of Indiana.

Jan. 13, 1893.

Appeal from circuit court. Clinton county; A. E. Paige, Judge.

Action by Kalula D. Cohee against Caroline Baer and others to have a judgment set aside. From a judgment entered on an order sustaining defendants' demurrers to the complaint, plaintiff appeals. Affirmed.

J. V. Kent and R. W. Irwin, for appellant. Palmer & Palmer and O. E. Brumbaugh, for appellees.

Olds, J.

The questions presented in this case arise on the rulings of the court in sustaining the demurrer to the second amended complaint, and a demurrer 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 21 years of age; that she did not arrive at the age of 21 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 D. 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 afterwards, at the September term, 1886, of 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 $65 and costs and $15 attorneys' 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 sale, and does not now 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 him surviving appellee Caroline Baer, his widow and sole heir, but that appellant was during all the time aforesaid an infant and married woman, and two years have not elapsed since she arrived at the age of 21 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 any guardian ad litem, but that said appearance and defense were 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 asking that said judgment and sheriff's sale be declared void, and they 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 causes. 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...