Cotterell v. Koon
| Decision Date | 04 October 1898 |
| Docket Number | 18,507 |
| Parties | Cotterell, Administrator, v. Koon et al |
| Court | Indiana Supreme Court |
From the Montgomery Circuit Court.
Affirmed.
Paul & Van Cleave and William B. Paul, for appellant.
H. H Ristine and Kennedy & Kennedy, for appellees.
The questions for decision in this case arise upon the finding and decree of the circuit court setting aside and annulling a judgment in favor of George W. Koon, now deceased, and against the appellees, quieting the title to certain real estate. The court found the facts specially and stated conclusions of law thereon in substance as follows: John Koon died, testate, in Montgomery county, in October, 1882 leaving a widow and several children, among them his son, the said George W. Koon, then a youth sixteen years of age. By an item of his last will, he gave to his widow, Mary Koon, the land in question, at her death, "to go to and become the property of * * * George W. Koon to have and to hold during his natural life, and at his death to go to his children should he leave any surviving him; if not, then said lands to go to and be equally distributed amongst" the testator's surviving children and the children of such as may be dead.
George W. Koon married and, prior to March 1, 1894, had three children. On the 24th of January, 1894, his mother conveyed to him her interest in said lands. On said 1st day of March, 1894, he instituted suit in the court below against his said three children and the heirs at law of said John Koon, deceased, to quiet in him the title to said lands. At that time the said three children were Nellie T., aged five years; James R., aged four years, and Alice M., aged one year. They were living with their father, and were under his control, having no legal guardian of their persons or property. That, while they were served with process, there was no appearance by or for them, excepting as hereinafter stated; that all other defendants therein were merely nominal parties, and filed an answer consenting to a decree in favor of the plaintiff therein. The court further finds that one-----, a young lawyer, and a member of the bar of said court, was selected by the plaintiff therein to act as the guardian ad litem for said infant defendants, and his appointment as such was made by the court upon the request of the plaintiff; that said ----- accepted said appointment with the understanding and belief that his duties were merely formal; that he had no knowledge of the nature of the action, or how the same was to affect the interests of the persons for whom he acted; that he accepted the appointment only "for the purpose of accommodating the plaintiff in the procurement of the order of court and decree he desired in said cause; that the answer of the guardian ad litem was prepared for his signature by the plaintiff's attorney; that said guardian ad litem signed said answer, and the same was filed by plaintiff's attorney," and that he gave no further attention to said cause, and took no steps to protect the interests of said infants. On the same day of said appointment, the cause was submitted to the court with a hearing from no one but the plaintiff, and without objection, exceptions, cross-examination of witness, or other participancy by said guardian ad litem or any other for said children, and the court thereupon rendered a decree in favor of said plaintiff. On the 19th day of April, 1895, a fourth child, Walter R., was born to said George W. Koon, and thereafter on the 5th day of March, 1896, said George W. departed this life, leaving his said wife as his widow, and said four children him surviving. Said widow and children are the appellees herein, and the appellant is the administrator of the estate of said George W., deceased, and seeks to subject said lands to the payment of the debts of said estate. Upon the facts found, the court concluded, as matters of law: (1) That the said will vested the fee in said four children, subject to a life estate; (2) that the judgment in favor of George W. Koon was void; and (3) that said life estate was subject to sale by the administrator.
It is urged by the appellant's counsel that the facts found were insufficient to support the conclusions of law, because there was no finding that the judgment sought to be vacated disclosed its invalidity. The rule in collateral attacks would probably require such a finding, but an attack upon a judgment for fraud in its procurement is regarded as a direct attack, which is permitted, notwithstanding the decree or judgment questioned may appear upon its face in all respects regular and valid. Wilhite v. Wilhite, 124 Ind. 226, 24 N.E. 1039; Kirby v. Kirby, 142 Ind. 419, 41 N.E. 809; Asbury v. Frisz, 148 Ind. 513, 47 N.E. 328; Brake v. Payne, 137 Ind. 479, 37 N.E. 140. It would certainly be a rare instance in which the decree would disclose the fraud or imposition upon the parties or upon the court.
It is further urged for the appellant that the findings were insufficient in failing to find as a fact the existence of fraud in the procurement of the judgment. This...
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