Gaddis v. Barnes, 18337
| Decision Date | 12 June 1953 |
| Docket Number | No. 18337,18337 |
| Citation | 112 N.E.2d 881,123 Ind.App. 624 |
| Parties | GADDIS v. BARNES et al. |
| Court | Indiana Appellate Court |
Wilbur F. Dassel, Evansville, for appellant.
Bredell, Cooper & Martin, Indianapolis, for appellees.
This appeal questions the action of the court below in sustaining a plea in abatement, and entering judgment that the action 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:
'* * * 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:
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 said defendant 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, Jr. demands that said action as to him abate.'
The appellant did not demur to the plea in abatement and issues were joined on the same and a trial had on appellee's plea in abatement, after which the court entered judgment that the action abate as to the defendant, Harold Barnes, Jr. The appellant filed his motion for a new trial, the grounds of which motion were that the decision of the court is not sustained by sufficient evidence and is contrary to law.
The evidence in this case consisted of various exhibits as to service of summons upon the appellee and the testimony of Harold Barnes, Jr.'s, stepmother, Viola Barnes, and the testimony of Mildred Bays, a stepsister of Harold Barnes, Jr.
The appellee Harold Barnes, Jr.'s, stepmother testified that she had raised him from the time he was six years old until he went into the Navy in World War II; that he returned from the Navy about 1945 and had not lived with her since his return from the Navy; that she had not seen him for about a year and that he did not live at 2507 Haag Avenue on June 2, 1951, the time the summons was served. She further testified that she did not know where he was staying during the year 1951; that he sometimes stayed with her daughter who lived about three blocks from where she lived and that occasionally he would stay with the witness Viola Barnes. She further testified that he received his mail at her house at 2507 Haag Avenue, which was also the home of Harold Barnes, Sr.; that he had been using this address as his residence address ever since she had owned the place and that if mail would come for him now it would come there. She further testified 'he has no home, he just boards here and there'; that he always used her home as his permanent address. She also testified that he had not received any of his mail since the summons was served; that he had received mail but had not been around to see it.
Appellee's stepsister, Mildred Bays, testified that Harold Barnes, Jr., had lived with her from tiem to time; that he just boarded with them and slept in the front room; that he did not get any mail at her address; that he had been married before, but he and his wife were divorced. She further testified that he left town several times to go to different parts of the country; that he drove a truck for a good while; that he was on the road from here to Chicago and from Chicago to Nashville; that he separated from his wife the last of 1945 or the middle of 1946. She further testified that during the times he lived with her he received his mail at 2507 Haag Avenue. She testified that he disappeared in 1951 between the 22nd and 24th of February.
The plea in...
To continue reading
Request your trial
-
Sicanoff v. Miller
...a fact not 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 Bu......
-
Fernandez v. Chamberlain, 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......
-
Davis v. Thiede
...that a plea 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 881. However, the above-mentioned motion to dismiss directed to the second amended complaint is apparently not such ......
-
Steedman v. Polero, 65-399
...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 § Affirmed. 1 Such an interlocutory order is appealable under rule 4.2, F.A.R., 31 F.S.A. Substit......