Gaddis v. Barnes, No. 18337
| Docket Nº | No. 18337 |
| Citation | 112 N.E.2d 881, 123 Ind.App. 624 |
| Case Date | June 12, 1953 |
| Court | Court of Appeals of Indiana |
Page 881
v.
BARNES et al.
[123 Ind.App. 625] Wilbur F. Dassel, Evansville, for appellant.
Bredell, Cooper & Martin, Indianapolis, for appellees.
BOWEN, Judge.
This appeal questions the action of the court below in sustaining a plea in abatement, and entering judgment that the action
Page 882
do abate as to the appellee Harold Barnes, Jr., on the appellant's complaint for damages for personal injuries. The issues were joined below on appellant's complaint, the appellee Harold Barnes, Jr.'s, plea in abatement, and the appellant's answer thereto. Such plea in abatement alleged:[123 Ind.App. 626] '* * * that on June 1, 1951, and at no time since said date, has said defendant, Harold Barnes, Jr., resided in Vanderburgh County or any place in the State of Indiana, nor has he had nor maintained a last or usual place of residence in Vanderburgh County or any place in the State of Indiana; that continuously ever since the commencement of this action and at the present time and at the beginning of this action and ever since that time, the said defendant, Harold Barnes, Jr., has been and still is a non-resident of the State of Indiana.
'That plaintiff's alleged cause of action for damages for personal injuries as alleged in his complaint, is predicated upon an automobile accident alleged to have occurred in Vanderburgh County, State of Indiana, as a result of the alleged negligence of the defendant, Harold Barnes, Jr., in the manner in which he was alleged to have been driving his automobile on the 30th day of December, 1950.
'That on December 30, 1950, and at the time of the happening of said purported accident described in plaintiff's complaint, said defendant, Harold Barnes, Jr., was a resident of Vanderburgh County, State of Indiana, and that he remained a resident of said County and State until on or about February 9, 1951, at which time he moved and changed his residence outside the State of Indiana; that said defendant, Harold Barnes, Jr., has not now and never has had an office, agency or place of business in said Vanderburgh County, State of Indiana, and that said suit and cause of action did not grow out of and was not concerned with any business or transaction of any office or agency of said defendant, Harold Barnes, Jr., in the State of Indiana.
'That the only attempted or purported service of summons therein as shown by the records of this case was as follows:
"State of Indiana, Vanderburgh County, ss:
"The State of Indiana to the Sheriff of Vanderburgh County,
"Greeting:
"You are hereby commanded to summon and notify Harold Barnes, Jr., Haag Ave. (Across [123 Ind.App. 627] the street from 2516 Eloise Ave.) that there is an action instituted against him by Frank Gaddis as Plaintiff in the Superior Court of Vanderburgh County, Indiana, at Evansville, Indiana, and that the 16th day of June, 1951 is fixed as the day on which he is to appear or enter his appearance either in person or by attorney in said court, and in case of failure so to do the matter will be decided in his absence.
"And of this writ make due return.
"Witness, the Clerk of said Court and the seal hereunto affixed at Evansville, this 1st day of June 1951.
"s/s Ed J. Sauer Clerk
s/s by Eloise Sachs Deputy'
"On the reverse side of the summons appeared the following:
"Served the within Harold Barnes, Jr., by leaving a true copy of this summons at his last and usual place of residence this June 2, 1951.
"s/s Frank F. McDonald
Sheriff Vanderburgh County
By s/s Harold Bennett
Deputy'
'That no other attempted service of process of any time whatsoever has been had or attempted to be had in this case upon said defendant, Harold Barnes, Jr., other than said attempted service of process as above set forth.
'That said writ of summons issued in this cause by the Clerk of this Court and directed to the Sheriff of Vanderburgh County, Indiana for service upon this defendant, Harold Barnes, Jr., was never served by the Sheriff or duly authorized deputy personally upon the said defendant; that said defendant, Harold Barnes, Jr., has never been served personally nor had read to him the original or a copy of said summons issued in this cause and that [123 Ind.App. 628] said defendant,
Page 883
Harold Barnes, Jr., has not been served by service of process in the above entitled cause in any manner whatsoever.'Wherefore, the defendant Harold Barnes,...
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Sicanoff v. Miller, No. 18975
...presumptively within the personal knowledge of the sheriff. State of New Jersey v. Shirk, supra; Gaddis v. Barnes, Jr., et al., 1953, 123 Ind.App. 624, 112 N.E.2d 881; Roth v. Bonar, 1951, 122 Ind.App. 174, 101 N.E.2d 828; Donnelley v. Thorne, 1943, 114 Ind.App. 468, 51 N.E.2d But a sheriff......
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Davis v. Thiede, No. 20155
...in abatement is a dilatory plea. Grider v. Scharf (1947), 225 Ind. 251, 266, 73 N.E.2d 75, 749; Gaddis v. Barnes, Jr., et al. (1953), 123 Ind.App. 624, 112 N.E.2d However, the above-mentioned motion to dismiss directed to the second amended complaint is apparently not such a dilatory motion......
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Fernandez v. Chamberlain, No. 67--31
...showing that he had not concealed his whereabouts, and failed to disclose where he could be found and served. See Gaddis v. Barnes, 123 Ind.App. 624, 112 N.E.2d 881, 883--884; 71 C.J.S. Pleading § In the case now under consideration for determination, the record substantiates the trial judg......
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Goldenberg v. Sebersky, No. 96855
...Commercial Credit Corp. v. Boyko, 103 N.J.L. 620, 624, 137 A. 534, 536 (E. & A.1927); 71 C.J.S., Pleading, § 135c; Gaddis v. Barnes, 112 N.E.2d 881 (Ind.App.Ct.1953). Chitty said (13th Amer.ed., 1859, p. 446), 'the plea in abatement must not only point out the plaintiff's error, but mus......
-
Sicanoff v. Miller, No. 18975
...presumptively within the personal knowledge of the sheriff. State of New Jersey v. Shirk, supra; Gaddis v. Barnes, Jr., et al., 1953, 123 Ind.App. 624, 112 N.E.2d 881; Roth v. Bonar, 1951, 122 Ind.App. 174, 101 N.E.2d 828; Donnelley v. Thorne, 1943, 114 Ind.App. 468, 51 N.E.2d But a sheriff......
-
Davis v. Thiede, No. 20155
...in abatement is a dilatory plea. Grider v. Scharf (1947), 225 Ind. 251, 266, 73 N.E.2d 75, 749; Gaddis v. Barnes, Jr., et al. (1953), 123 Ind.App. 624, 112 N.E.2d However, the above-mentioned motion to dismiss directed to the second amended complaint is apparently not such a dilatory motion......
-
Fernandez v. Chamberlain, No. 67--31
...showing that he had not concealed his whereabouts, and failed to disclose where he could be found and served. See Gaddis v. Barnes, 123 Ind.App. 624, 112 N.E.2d 881, 883--884; 71 C.J.S. Pleading § In the case now under consideration for determination, the record substantiates the trial judg......
-
Goldenberg v. Sebersky, No. 96855
...Commercial Credit Corp. v. Boyko, 103 N.J.L. 620, 624, 137 A. 534, 536 (E. & A.1927); 71 C.J.S., Pleading, § 135c; Gaddis v. Barnes, 112 N.E.2d 881 (Ind.App.Ct.1953). Chitty said (13th Amer.ed., 1859, p. 446), 'the plea in abatement must not only point out the plaintiff's error, but must sh......