Frankel v. Voss

• Decision Date: 01 June 1915
• Docket Number: No. 8567.,8567.
• Parties: FRANKEL v. VOSS et al.
• Court: Indiana Appellate Court

59 Ind.App. 175

109 N.E. 55

FRANKEL

v.VOSS et al.

No. 8567.

Appellate Court of Indiana, Division No. 2.

June 1, 1915.

Appeal from Circuit Court, Lake County; Willis C. McMahan, Judge.

Action by Julius Frankel against Joachim Voss and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Frank L. Welsheimer, of Gary, and Addison K. Sills and Addison K. Sills, Jr., both of Monticello, for appellant. Otto J. Bruce and W. Vincent Youckey, both of Crown Point, E. E. Wier, of La Porte, O'Donnell & Norton, of Gary, Oakes & Ames, and Nye & Davis, of Crown Point, for appellees.

MORAN, J.

Appellant commenced this action against appellees for the possession of a certain tract of real estate, on the ground that he was the owner in fee simple thereof, and to have the amount of a lien growing out of a foreclosure proceedings fixed, in order that he might discharge the lien on the real estate by paying to appellees, or to the ones entitled thereto, to the amount found to be due. By the conclusions of law stated on the facts specially found, appellant was denied the relief sought, and from a judgment rendered against him he appeals. The questions presented for review arise upon the conclusions of law and the refusal of the court to grant a new trial upon written reasons filed, and as a matter of right.

Tersely stated, this controversy is waged around the legality of a foreclosure proceedings had against the real estate in question. On November 15, 1890, appellee Joachim Voss was the owner of the real estate in question, consisting of 19 acres, located in section 8, township 36, range 8 west, in Lake county, Ind.; and on the date above he conveyed the same by warranty deed to Arthur E. Clark, for the sum of $2,000, and to secure $1,500 of the purchase money, which was unpaid, Clark executed a mortgage thereon to appellee Joachim Voss. On November 24, 1890, Clark and wife conveyed the same real estate to Peter Stein, subject to the mortgage incumbrance of $1,550. On December 16, 1890, Peter Stein caused the real estate to be platted into blocks and lots as Germania No. 2 addition to the town of Tolleston, Ind.; and which since that time has become a part of the city of Gary, Ind. Stein conveyed by warranty deed to the Tolleston Park Company, a voluntary association, organized under the laws of the state of Indiana, for the purpose of buying, holding, and selling real estate. By the provisions of the deed, the Tolleston Park Company agreed to pay the mortgage indebtedness against the real estate in the sum of $1,500. Prior to October 21, 1895, the Tolleston Park Company conveyed to divers persons many of the lots so platted. On the date last mentioned, $500 of the mortgage incumbrance remained unpaid and was past due, and appellee Joachim Voss filed suit to foreclose the mortgage securing the same, making the Tolleston Park Company, together with the purchasers of the lots aforesaid, parties defendant. Notice by publication was given as to the nonresident defendants. As to the Tolleston Park Company, the affidavit stated that the company had no office or place of business in the state of Indiana, so far as the affiant and plaintiff to the action knew; that its main office was in the city of Chicago, but that its officers and employés had left the same without giving any address as to their whereabouts, and upon diligent inquiry the residence of the company was unknown; that it had departed from the state of Indiana, in order to avoid service of summons. After notice by publication for three weeks had been given, all defendants to the suit were defaulted, including those personally served and those served by publication. A decree of foreclosure was entered against the real estate, and on March 21, 1896, the real estate was sold to appellee Joachim Voss, and on March 27, 1897, the sheriff of Lake county executed to the purchaser a deed for the real estate in question. There was $783.15 due on the decree against the real estate at the time of the sale. Upon the execution of the sheriff's deed appellee Joachim Voss immediately took possession of the real estate, and he and his grantees, who purchased in good faith, remained in open, continuous, adverse, and exclusive possession, undisturbed until the filing of the suit. On August 15, 1909, appellant took a quitclaim deed from the Tolleston Park Company for the real estate in question in consideration of $500; the value at the time of the conveyance was not less than $12,000. The Tolleston Park Company from the organization to the commencement of the suit in bar was managed and controlled solely by Hulburd Dunlevy, that no records or books were kept by the company, and from 1894 to 1906 he gave the real estate no attention, paid no taxes thereon, nor any of the indebtedness against the same, and he had knowledge of the foreclosure proceedings. Appellant Julius Frankel, at the time he took the quitclaim deed for the real estate, and prior thereto, had knowledge of the foreclosure proceedings.

The theory of appellant is that the foreclosure proceedings and sale as to the Tolleston Park Company were absolutely void for want of notice. On the part of appellee Joachim Voss, it is the contention as to this branch of the case that the foreclosure proceedings and sale divested the Tolleston Park Company of all its right, title, and interest in and to the real estate in question.

[1] The specific infirmity pressed by appellant is that, in order to get valid service upon the Tolleston Park Company by publication, a summons must first have been issued and a return made by the sheriff thereon, as provided by statute, and that this was a prerequisite and strictly jurisdictional, before service could be had by publication, and without such steps being taken the decree rendered was void. In support of this proposition, reliance is placed principally upon Eel River R. R. Co. et al. v. State ex rel., 143 Ind. 239, 42 N. E. 617. This decision in construing a statute in reference to service of a corporation, organized under the laws of this state, held that before constructive service could be had the sheriff's return must disclose that the corporation had no officer, or person authorized to transact its business, residing within the county where such corporation had been located, or exercised its powers, upon which process could be served, as required by the act. But in that case the service was directly challenged by a motion to quash the same. Therefore it is not an authority in the case at bar.

The questions of service, jurisdiction both of the subject-matter and of the person, as well as that of a direct and collateral attack on a judgment or decree of a court of general jurisdiction, have recently received much attention by this as well as the Supreme Court, and the authorities have been reviewed and analyzed in the following cases: Stone v. Elliott (Sup.) 106 N. E. 710;Larrimer v. Krauco, Treas., 105 N. E. 936;Baker v. Osborne, 104 N. E. 98;Friebe v. Elder, 181 Ind. 597, 105 N. E. 151;Beavers v. Bess, 108 N. E. 266;Sinclair v. Gunzenhauser, 179 Ind. 78, 98 N. E. 37, 100 N. E. 376.

A further analysis and review of the authorities on this subject would serve no useful purpose. The rule adduced from these authorities is that, when a judgment or decree has been entered of record in a court of general jurisdiction, to render the same void, it is not enough that the court did not in fact have jurisdiction to render it, but the want of jurisdiction must affirmatively appear upon the face of the record; that before a court acts it must determine that it had jurisdiction to decide the matter presented; and when it had so determined it becomes a judicial act, as final and conclusive against a collateral attack as any other judicial decision. And where the court, having jurisdiction of the subject-matter, adjudges that notice was given, this decision will repel a collateral attack, unless the record of the court affirmatively shows that no notice was given; and this is so although the record shows a defective and irregular notice.

The conclusion we have reached on another branch of this cause makes it unnecessary to determine whether the record affirmatively discloses that a summons was not issued for the Tolleston Park Company, and returned as the statute provides, before resorting to constructive service; nor do we need to decide that if there was a failure to issue summons, and a return made thereon by the sheriff that there was no officer or person upon whom service could be had, that it would or would not be such an infirmity, within...