Garrison v. Miller

• Citation: 112 N.E. 22,62 Ind.App. 485
• Decision Date: 31 March 1916
• Docket Number: No. 9021.,9021.
• Parties: GARRISON v. MILLER et al.
• Court: Court of Appeals of Indiana

62 Ind.App. 485

112 N.E. 22

GARRISON

v.MILLER et al.

No. 9021.

Appellate Court of Indiana, Division No. 1.

March 31, 1916.

Appeal from Superior Court, Marion County; John Rochford, Judge.

Proceeding by Forest L. Garrison against Winfield Miller and others. From an adverse judgment, said Garrison appeals. Affirmed.

W. A. Reading, H. G. Hargrove, and W. F. Elliott, all of Indianapolis, for appellant. Howe Stone Landers and Joseph W. Hutchinson, both of Indianapolis, for appellees.

FELT, P. J.

This is a proceeding by appellant on a verified amended motion to open up a decree and permit a defense to be made. Each of the appellees separately demurred to the motion, on the ground that the facts averred were insufficient to entitle appellant to have the decree opened up as prayed. The court sustained each of the demurrers, and appellant duly excepted, and, refusing to plead further, judgment was rendered that he take nothing by his motion and that he pay costs. From this judgment an appeal was taken, and the several rulings of the court on the separate demurrers are assigned as error.

Omitting formal parts, the substance of the amended motion is that appellant is informed that in 1910 he was made defendant to a certain suit brought by appellees in the Marion superior court; that notice was issued by publication; that he was at the time a nonresident of the state of Indiana, and continued to be until after the decree was rendered against him; that he had no actual notice or knowledge of the suit until long after the decree was rendered; that said decree foreclosed a lien against real estate owned by him for $78.12, and thereafter appellees obtained a sheriff's deed for the property, which is described; that since the foreclosure of said lien appellant has expended $369.98 in the payment of taxes and assessments against said property; that the real estate is worth $1,000; that as soon as he learned that appellees claimed title to said property, and within five years from the rendition of the decree foreclosing said lien, he filed this motion.

Sections 627 and 628, Burns 1914, are as follows:

Section 627: “Parties against whom a judgment has been rendered without other notice than the publication in the newspaper herein required, except in cases of divorce, may, at any time within five years after the rendition of the judgment, have the same opened, and be allowed to defend.”

Section 628: “Before any judgment shall be opened, such party shall give notice to the original complainant, or his heirs, devisees, executors, or administrators, of his intention to make application to have the judgment opened as the court in term, or the judge thereof, in vacation, shall require, and shall file a full answer to the original complaint, and an affidavit stating that, during the pendency of the action, he received no actual notice thereof in time to appear in court and object to the judgment, and shall also pay all such costs of the action as the court shall direct.”

The two sections are to be construed together, and when so considered show that a person to come within the provisions must “file a full answer to the original complaint.” As a matter of practice, the moving party should tender with his verified motion the answer he wishes to file, to the end that the court may be advised that he has a defense to the action, and for the further purpose of avoiding delay in disposing of the case if the judgment is opened and the moving party permitted to defend the original action. In the case at bar no answer was either tendered or filed, and there is nothing in the record to show that appellant had or has any defense to the original suit. In the absence of...