Harvey v. Rodger

• Decision Date: 28 February 1924
• Docket Number: No. 11521.,11521.
• Parties: HARVEY et al. v. RODGER.
• Court: Indiana Appellate Court

84 Ind.App. 409

143 N.E. 8

HARVEY et al.

v.RODGER.

No. 11521.^*

Appellate Court of Indiana, Division No. 2.

Feb. 28, 1924.

Appeal from Circuit Court, Madison County; Wm. A. Kittinger, Judge.

Proceeding by John C. Rodger for appointment of a guardian for Lena Leota Harvey. Motion by said Harvey to vacate the judgment of appointment was denied, and motion of Rodger for a nunc pro tunc entry was granted, and said Harvey and others appeal. Affirmed.

Guy R. Ayres, of Anderson, for appellants.

Joseph A. Dickey and Diven, Diven & Campbell, all of Anderson, for appellee.

McMAHAN, J.

Appellee filed his complaint in the Madison circuit court January 17, 1921, alleging that appellant was an inhabitant of that county and was incapable of managing her estate because of old age and infirmities, and asking for the appointment of a guardian. The record shows that without a summons being served on her by the sheriff, or by any other person authorized to serve a summons, she filed an answer January21, 1921, alleging that “on account of physical disability she is unable to appear in person at said court; that she is of sound mind and disposing memory, but that on account of her present physical infirmities an emergency exists for the immediate appointment of a guardian of her person and estate; and that it is her desire that a guardian of her person and estate be appointed forthwith,” and asking the court to appoint appellee as such guardian. This answer was sworn to by appellant before Guy R. Ayres, a notary public, and who, we assume, was one of the attorneys who signed said complaint as attorney for appellee, although there is nothing in the record to that effect, other than what may be inferred from the petition of appellant to vacate and set aside the appointment of appellee as her guardian. Immediately upon the filing of this answer the matter was submitted to the court and after hearing the evidence the court found that appellant was a resident of Madison county, that she had an estate, that on account of physical infirmities she was unable to look after her estate, and it was decreed that a guardian should be appointed for her, because of her physical infirmities. Appellee on said last-named day was appointed her guardian, his bond having been fixed at $60.000.

On November 28, 1921, appellant filed her motion to set aside said judgment and appointment, and on December 14. 1921, she filed her amended motion for that purpose. In this amended motion appellant alleged that she had never been served with summons; that the judgment was taken against her without her knowledge or consent; that the attorney who appeared for her in said matter had no authority from her; that the judgment was taken when she was not present in court and when no answer had been filed by her. It also alleged that said judgment had been procured by reason of the fraudulent conduct of one of her attorneys upon whom she relied; that the complaint filed for the purpose of having the guardian appointed was filed by her said attorney upon whose alleged wrongful conduct she relied; that this same attorney through fraud induced the court to render the judgment against her. A meritorious defense is alleged, and also that the motion to set aside was filed as soon as she discovered the judgment had been taken against her.

January 9, 1922, appellee filed his motion in which it was alleged that the petition heretofore referred to for the appointment of a guardian for appellant came on for hearing January 21, 1921; that appellant's verified answer to said petition was filed on said day in which she acknowledged her physical infirmities and asked for the immediate appointment of a guardian; that the cause was heard and tried by the court and that the court appointed appellee her guardian and the existence of certain written memorials of the facts is alleged; that the clerk had failed to enter the proceedings on the records, and asking for an order nunc pro tunc.

Appellant's motion to set aside the judgment and appointment of the guardian, and appellee's motion for an entry nunc pro tunc, were submitted to the court for trial February 13, 1922. The court after hearing the evidence found against appellant on her motion to set aside the judgment and in favor of appellee on his motion for an entry nunc pro tunc, and judgment was entered accordingly, to which rulings appellant excepted. No motion for a new trial was filed and the evidence is not in the record.

From the action of the court in refusing to set aside the judgment and appointment of the guardian and in sustaining appellee's petition for an entry nunc pro tunc, appellant appeals. The errors assigned are that the court erred (1) in overruling appellant's motion to set aside the judgment and appointment of a guardian, (2) in sustaining appellee's motion for an entry nunc pro tunc.

Appellant concedes that the evidence is not in the record and that the evidence introduced was sufficient to sustain the action of the court, if the court had jurisdiction of her person and of the subject-matter of appellee's petition, asking for the appointment of a guardian of her person and estate.

[1] The record shows the filing of appellee's petition for the appointment of a guardian, that appellant filed her verified answer thereto, and that the court after hearing the evidence found for appellee and appointed him guardian. The correctness of the record showing the filing of the answer, the trial and judgment as shown by the entry nunc pro tunc is not and cannot in the absence of the evidence be challenged on this appeal. So far as this appeal is concerned, the record imports absolute verity, and we must assume that appellant filed her verified answer, to the petition asking for the appointment of a guardian, in which she stated that on account of her physical infirmities an emergency existed for the immediate appointment of a guardian and that she desired the court to make such an appointment forthwith. This answer was signed by appellant and sworn to by her January 20, 1921, before her present attorney, Guy R. Ayres, notary public. We are not advised as to whether this answer was filed by appellee in person or by attorney, other than as is shown by the record which states that the “defendant Lena L. Harvey filed her verified answer to the complaint in those words,” and then sets out the answer in full. In the face of this record we cannot say it was not filed, or that it was filed by an unauthorized person. No reversible error is shown in the action of the court in sustaining appellee's motion for an entry nunc pro tunc, as we are bound to presume the evidence was sufficient to warrant the amendment of the record. Boonville Nat. Bank v. Blakey, 166 Ind. 427, 433, 76 N. E. 529.

[2] Appellant says her appeal is not from the mere sustaining of the motion for a nunc pro tunc entry, but that the appeal is from the final disposition of the case by the judgment rendered after sustaining the motion nunc pro tunc. If by this appellant means her appeal is from the judgment appointing the guardian, her contention cannot prevail. The entering of a judgment nunc pro tunc does not extend the time within which an appeal can be taken. Mayer v. Haggerty, 138 Ind. 628, 38 N. E. 42. There was no judgment from which appellant could appeal other than the judgment denying her motion to vacate and the judgment authorizing the entry nunc pro tunc. The judgment appointing the guardian was rendered January 21, 1921. An appeal from that judgment could not be taken after 180 days from the date of this judgment. And this appeal can only be considered as an appeal from the judgment refusing to set aside and vacate the judgment appointing a guardian and correcting the record nunc pro tunc. The transcript in this appeal was filed July 26, 1922.

The statute under which the petition for the appointment of a guardian for appellant was filed was enacted in 1911. Acts 1911, p. 533; Burns' 1914, § 3111a et seq. The first section of that act was amended in 1919 (Acts 1919, p. 520), and as amended reads as follows:

“That whenever any person shall file his complaint in the court having probate jurisdiction in any county, to the effect that any inhabitant of such county is incapable of managing his estate or business affairs because of old age, infirmity, improvidence, or being a spendthrift, such court shall cause not less than ten (10) days' notice of the filing of such complaint to be given such person by a summons issued by the clerk to the sheriff of said county. In all cases where the party is not represented by counsel, and no appearance of counsel has been intered [entered] in the appearance docket of such court at the expiration of the time fixed in the summons for the return of such service, it shall be the duty of the clerk of said court to deny the facts set forth in such complaint as to such disability, which issue shall be tried as the issues in civil actions are tried, by the court, or by a jury, to be impaneled under the direction of said court, and it shall be the duty of the prosecuting attorney of said county to appear for such person and to resist such complaint, and by all proper means to defend and protect the interests of such person.”

Appellant contends that her motion to set aside the judgment should have been sustained because (1) the court had no jurisdiction over her person, and (2) it had no jurisdiction to appoint a guardian because of “physical infirmities.”

In reference to the first contention we do not know what evidence was introduced concerning the filing of the answer and her appearance. We do know that a summons was issued for appellant on January 17, requiring her to appear January 27, 1921, and that an answer was filed to the complaint asking for the appointment of the guardian. This summons is not shown to have been delivered to the sheriff for service and so far as the record shows it was not served by him...