Hitt v. Carr
| Decision Date | 22 June 1915 |
| Docket Number | 8,529 |
| Citation | 109 N.E. 456,62 Ind.App. 80 |
| Parties | HITT ET AL. v. CARR |
| Court | Indiana Appellate Court |
Rehearing denied October 15, 1915. Transfer denied January 7 1916. Motion to set Aside denial of transfer stricken from files May 22, 1916. [Copyrighted Material Omitted]
From Laporte Superior Court; James F. Gallaher, Special Judge.
Action by Drusilla Carr against Rosa M. B. Hitt and others. From a judgment for plaintiff, the defendants appeal.
Affirmed.
Erwin McDowell, John H. Gillette, Osborne & McVey, Meeker & Hershman, Hodges & Ridgley and John R. Cockran, for appellants.
Henry Warrum, Ballard & Stanton, D. E. Kelley and A. C. Carver, for appellee.
John L. Davidson and Korbly & New, Amici Curiae.
This suit was brought by appellee against appellants and others to quiet title to certain real estate. There were two paragraphs of amended complaint. The first contains the usual formal averments to quiet title and alleges that appellee is the owner in fee simple of real estate in Lake County, Indiana, described as follows: "Lot one (1) in section thirty-one (31) in township thirty-seven (37) north, range seven (7), west, of the second principal meridian, and all that part of said section thirty-one (31) lying north and west of said lot one (1) above described, being all of the land lying south of lake Michigan and north and west of the Grand Calumet river in said section thirty-one (31)". It is also alleged: "That on or about the month of March, 1876, this plaintiff under claim of right and color of title took the exclusive possession, control, and absolute dominion and use of all the said real estate, and has continuously under said claim of right, with full notice to the world, since said time, lived upon, occupied, cultivated, as far as said real estate was possible, or susceptible of cultivation, cultivated, improved, and used all of said real estate for every purpose to which it was adapted, or of which it was capable of use, and during all of said time has asserted, exercised, and claimed the absolute ownership, unrestricted right, use and title of and in all of said real estate; that for more than twenty years continuously last past, she has had, under claim of right, the actual, hostile, open, notorious, exclusive and continuous possession of said real estate, and of every part thereof; that plaintiff's said claim and use and enjoyment of said real estate, as aforesaid, has been adverse, visible, and uninterrupted, during all of said time." The second paragraph alleges that appellee is the owner in fee simple of the real estate described in the first paragraph of amended complaint, and also contains the usual averments to quiet title, which are omitted here because not controverted.
Appellants, other than Rosa M. B. Hitt, separately demurred to each paragraph of amended complaint, on the ground that the facts alleged are insufficient to state a cause of action. Each demurrer was overruled and an exception taken. Appellant Rosa M. B. Hitt answered by general denial each of the allegations of the amended complaint as to all land lying north of the Indian boundary line, also known as the "ten mile" line. She also filed a second paragraph of answer in which she alleged in substance that the "defendant Mary H. B. Hitt and Winchester W. Hall", in August, 1903, were the owners of all the fractional quarter west of the Calumet River and north of the Indian boundary line, of the north half of section 31, township 37 north, range 7 west, of the second principal meridian, containing 64.51 acres; that on August 28, 1903, said owners filed suit in the circuit court of Lake County, Indiana, against a large number of persons to quiet title to said real estate and appellee was a party to the suit under the name of "Rosela Carr"; that summons was duly issued and served on "Drusilla Carr"; that Drusilla Carr did not appear and was defaulted and judgment was duly entered against her quieting the title to said real estate in said Hitt and Hall, which judgment is in full force and effect; that since the rendition of said judgment she (Rosa M. B. Hitt) has acquired an interest in said real estate from said Mary H. B. Hitt by conveyance. By her third paragraph of answer, appellant Rosa M. B. Hitt disclaimed any interest in the other real estate described in appellee's amended complaint.
Appellant Arza B. Hitt filed answers similar to those of Rosa M. B. Hitt, in which he alleges that since title to said real estate was quieted in Mary H. B. Hitt and appellant Hall, he has acquired an interest therein by conveyance from Mary H. B. Hitt. Appellant Hall also filed answers similar to those of Rosa M. B. Hitt. Appellant Mathieu filed answer in two paragraphs, the first of which was similar to the answer of Rosa M. B. Hitt. The second paragraph alleges that appellant Mathieu and certain other parties in August, 1903, were the owners of an undivided one-sixth part of the real estate described in appellee's amended complaint, as tenants in common with one Mary H. B. Hitt and appellant Hall. The answer then alleges the facts about the suit of appellant Hall and Mary H. B. Hitt, in 1903, to quiet title to said real estate, and avers that since the rendition of the judgment in that case she has acquired certain interests in said real estate from said persons, other than the plaintiffs in that suit, and now owns the undivided one-sixth part thereof as tenant in common with the other appellants who are alleged to own the undivided five-sixths part of said real estate; that the title acquired by the plaintiffs in said suit to quiet title in 1903 enured to her benefit by reason of the fact that at the time the judgment was rendered she was an owner as tenant in common, with the plaintiffs in the suit, of the real estate to which the title was quieted as aforesaid. Appellee replied to the special answers by general denial.
Appellant Mathieu filed a cross-complaint against appellee to quiet her title to the portion of the real estate she claimed to own. To this cross-complaint, appellee filed a general denial. The cause was tried by a jury and a verdict was returned in favor of appellee on her amended complaint and in her favor on the cross-complaint of appellant Mathieu. Judgment was rendered on the verdict quieting appellee's title to the real estate described in her amended complaint.
The errors assigned and relied on for reversal are: (1) The overruling of appellants' motion for a new trial; (2) the overruling of the separate motion of each of the appellants for a new trial; (3) that the Laporte Superior Court had no jurisdiction of a part of the real estate involved in the judgment of that court, viz., as to the land lying north of lot No. 2 thereof, according to the government plat. A new trial was asked on the grounds: (1) That the verdict of the jury is not sustained by sufficient evidence; (2) that the verdict is contrary to law. (3) That the court erred in refusing to give to the jury certain instructions tendered by appellants; (4) in giving to the jury certain instructions; (5) in the admission of certain evidence; (6) in permitting appellee to testify in answer to certain questions; (7) in excluding certain evidence offered by appellants; (8) and in refusing to permit appellants to read in evidence a certified copy of the record in the case of Hitt, et al. v. Lightener, et al., cause No. 6,444 of the Lake Circuit Court.
We first consider the alleged error in excluding the transcript of the record offered in evidence. The several answers of former adjudication allege that appellee was made a party defendant to the former suit to quiet title by the name of "Rosela Carr"; that summons was issued on such complaint, but was served on "Drusilla Carr". The answers do not proceed on the theory that the names are idem sonans or that appellee was commonly known as "Rosela Carr", but upon the theory that "Rosela Carr" was sued and the process against her was served on "Drusilla Carr", the appellee in this suit. In other words, that Drusilla Carr had been sued in her wrong name and served in her true name. Appellant Mathieu was not a party to the former suit. The record was offered in evidence on behalf of all the defendants and was objected to, on the ground that it does not show that appellee was a party to that suit; that she was served with process; that she was defaulted; that she appeared to the action, or that judgment was taken against her. Appellants urged the admission of the transcript in evidence on the ground that they had shown the loss of the summons, and that the names were "substantially idem sonans." The name of appellee does not appear in the transcript offered in evidence, but the name "Rosela Carr" does appear throughout the record of the proceedings. The transcript offered in evidence shows that "Rosela" Carr was duly summoned; that she was defaulted, and that judgment was rendered against her. Appellants did not claim that they had offered proof to show that the summons in the case issued against "Rosela" Carr had been served on appellee, nor did they state to the trial court that they proposed to make such proof. The transcript of the judgment rendered against "Rosela" Carr would not tend to prove the allegation of the answer that the summons issued against "Rosela" Carr had been served on appellee. The transcript shows that "Rosela Carr" was duly served with process, and that upon her failure to appear and answer the complaint, she was defaulted and judgment was rendered against her. So far as the record of the proceedings is evidenced by the transcript, it is unambiguous and can not be affected or modified by...
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