Dobbins v. McNamara
| Decision Date | 18 January 1888 |
| Docket Number | 13,032 |
| Citation | 14 N.E. 887,113 Ind. 54 |
| Parties | Dobbins v. McNamara |
| Court | Indiana Supreme Court |
From the Pulaski Circuit Court.
The judgment is reversed, with costs, and the cause remanded for further proceedings not inconsistent with this opinion.
N. L Agnew, B. Borders and J. F. Yarnell, for appellant.
W Spangler and H. A. Steis, for appellee.
The complaint in this proceeding represented that Matt Dobbins the appellant, had, on the 1st day of December, 1884, in an action for an alleged breach of a marriage contract recovered a judgment in the Pulaski Circuit Court against Hugh McNamara, the appellee, for the sum of $ 300 in damages, and costs of suit, setting out the complaint in that action at full length; that Dobbins, the plaintiff in the action thus referred to, had caused a summons to be issued against the defendant, McNamara, and by an endorsement on the complaint had made the summons returnable on the 15th day of the previous month of September, 1884; that the sheriff of Pulaski county, to whom the summons was directed, made return thereto as follows: that upon this return a default was entered against him, the said McNamara, and a judgment rendered against him as above stated.
The complaint further represented that he, the said McNamara, had in fact no notice of the pendency of said action; that at the time the complaint was filed and the summons was issued he was not a resident of Pulaski county, but was then, and for about a year previously had been, a resident of Benton county, in this State; that he had never at any time made his home with Edward Parish, or even remained over night at his house or place of residence; that he was not at any time within the jurisdiction of the Pulaski Circuit Court during the pendency of said action, and never knew that any such action was pending against him, or that any judgment had been therein rendered against him, until the 14th day of December, 1885, more than a year after the judgment had been entered.
The complaint still further represented that the pretended service of, as well as the return to, the summons in said original action was procured to be made by the fraud of the attorney for the plaintiff, and without proper inquiry either by such attorney or the sheriff; that the proceedings in said cause were erroneous, irregular and void for want of jurisdiction over the person of him, the said McNamara, and because the complaint was insufficient to authorize the rendition of such a judgment, and because the return of the sheriff was too defective to justify the entry of a default against him in the action. Wherefore the said McNamara demanded that the judgment in question should be set aside, vacated and held for naught.
The complaint was verified by the affidavit of McNamara duly attached.
A demurrer to the complaint being first interposed and overruled, the appellant, Dobbins, asked leave to file an answer to the complaint, which was refused. She then moved that the cause be set down for a hearing, and that she be allowed to introduce evidence to rebut the allegations of the complaint, and that motion was also denied. The court thereupon, considering only the allegations of the complaint, made a finding that the judgment described in that pleading was void and of no effect, and ought, therefore, to be vacated and set aside, and adjudged accordingly.
In support of the demurrer to the complaint, it is contended that the demurrer ought to have been sustained, because, considered as a complaint for a review of the proceedings complained of, it was insufficient on account of the failure to file with it a transcript of those proceedings, and because, considered as a complaint for relief against a surprise under section 396 of the present code, it was deficient in not averring and showing a meritorious defence to the action from which relief was demanded.
Whatever the pleader may have intended in regard to the precise form of this proceeding, the complaint was, in its essential...
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