Hitt v. Carr
| Decision Date | 13 July 1928 |
| Docket Number | No. 25634.,25634. |
| Citation | 162 N.E. 409,201 Ind. 17 |
| Parties | HITT et al. v. CARR et al. |
| Court | Indiana Supreme Court |
HITT et al.
v.
CARR et al.
No. 25634.
Supreme Court of Indiana.
July 13, 1928.
Appeal from Superior Court, La Porte County; Norman F. Wolfe, Special Judge.
Action by Rosa M. B. Hitt and others against Drusilla Carr and others. From a judgment for defendants, plaintiffs appealed to the Appellate Court and the cause was transferred to the Supreme Court under Burns' Ann. St. 1926, § 1357. Affirmed.
Superseding opinion in 150 N. E. 810.
Rabb, Mahoney & Fansler, of Logansport, Osborn, Osborn & Link, of La Porte, and Knapp & Campbell, of Chicago, Ill. (Joseph M. Rabb, of Logansport, Frank E. Osborn, of La Porte, and John R. Cochran and Leonard F. Martin, both of Chicago, Ill., of counsel), for appellants.
Grant Crumpacker, of Valparaiso, for appellee Daniel E. Kelly.
Everett G. Ballard, of Chicago, Ill., Felt & Forney, of Indianapolis, and Darrow, Rowley & Shields, of La Porte, for other appellees.
PER CURIAM.
The appellants brought suit against the appellees to restrain and enjoin them from asserting any right, title, interest, or claim in and to all that part of section 31 lying north of the Indian boundary line and west of the Grand Calumet river, in township 37 north, range 7 west of the second principal meridian, in Lake county, Ind.; and seeking relief from a judgment rendered by the La Porte superior court on May 17, 1912, quieting the title of the appellee Drusilla Carr to said real estate.
The defendants filed a demurrer to the complaint, which was sustained. That ruling was reversed on appeal by the Appellate Court, and its opinion thereon is reported in 77 Ind. App. 488, 130 N. E. 1. The Supreme Court denied a petition to transfer. The cause was tried upon plaintiffs' third amended and supplemental complaint, which complaint, with some additional allegations, is the same as the complaint which was held to be sufficient by the Appellate Court.
The trial occurred on January 15 to 27, inclusive, 1923. Upon the conclusion of the trial, the court found for the defendants, and rendered judgment against the plaintiffs for costs, and that the plaintiffs take nothing by their complaint. Plaintiffs filed a motion for
[162 N.E. 410]
a new trial, which was overruled. That ruling is assigned as error.
The averments of the third amended and supplemental complaint are as follows: For many years prior to the 28th day of August, 1903, one Mary H. B. Hitt and plaintiff William Winchester Hall were the owners in fact and of record by a regular chain of conveyance from the United States government of all that part of section 31 lying north of the Indian boundary line and west of the Grand Calumet river, in township 37 north, range 7 west of the Second principal meridian in Lake county, Ind., containing 64.50 acres, more or less. For several years prior thereto portions of said land had been occupied by squatters and numerous persons, most of whom were fishermen who fished in Lake Michigan, which joins said land on the north. A number of small buildings, commonly called “shacks,” had been erected upon said land by said persons, and were occupied by them and their families, and that among these persons were the defendants Drusilla Carr and her two sons, Fred Carr and Henry Carr. On August 28, 1903, said Mary H. B. Hitt and William Winchester Hall filed in the Lake circuit court in Lake county, Ind., their complaint to quiet their title to said real estate, and made defendants thereto all of the persons who then or any time prior thereto had occupied any portion of said land. That the defendant Drusilla Carr was made a defendant in said suit, but was named and described in said complaint as Rosela Carr. On said date a summons was duly issued by the clerk of said Lake circuit court, directed to the sheriff of Lake county, commanding him to summon each of the named defendants. Thereafter, on or about the 11th day of September, 1903, the sheriff, by one of his deputies, personally served said summons upon said Drusilla Carr by reading same to her, and also by delivering to her, then and there, a true copy thereof.
On December 14, 1905, the said Lake circuit court entered in said cause, under a caption in which all the plaintiffs and defendants were named, Rosela Carr being named as a defendant and Drusilla Carr not being named, which stated that each and all of the defendants, except Rodman Castle, had been duly served with summons by the sheriff at least 10 days prior to the first day of the term of court. On March 7, 1907, a further record was made in said cause which showed that all defendants, having been served with process and failing to appear, were duly called and defaulted, and the cause was thereupon submitted to the court for trial, and a finding was made that the plaintiffs were the owners of said real estate and the defendants had no interest therein. A judgment was rendered on said finding. The judgment as entered has never been appealed from or set aside or modified, but was at all times, and is now, in full force and effect. The clerk of the Lake circuit court did not, within one month after judgment was finally determined, nor at any time, enter in the final record book or any other book or record in his office a complete record of said cause; nor did the clerk at any time record the complaint, summons, or return thereon or any other pleading or paper filed in said cause, or any part of the proceedings therein other than the order entered on the 14th day of December, 1905, and the final judgment entered on March 7, 1907, and said land is now, and at all times has been, a waste of sand and sloughs incapable of producing any sort of vegetation, and has not at any time been cultivated in any manner.
By various deeds of conveyance the plaintiff, Rosa M. B. Hitt, became the owner of the undivided one-half of the undivided one-half interest formerly owned by Mary H. B. Hitt. On February 16, 1911, said Drusilla Carr filed in the Lake Superior Court, Lake county, Ind., a complaint against Mary H. B. Hitt, William Winchester Hall, and other persons to quiet her alleged title to said described real estate. A change of venue was taken in said cause, and it was removed to the Porter superior court, from which a further change of venue was taken to La Porte superior court. In April, 1912, a trial was had in said cause upon the amended complaint of Drusilla Carr, which consisted of two paragraphs, in which she claimed that she was the owner of said real estate, and that she had taken exclusive possession of same on or about the month of March, 1876, and that she had continuously, under claim of right with full notice to the world since March, 1876, lived upon, occupied, and cultivated said real estate, as far as it was possible or susceptible of cultivation, and during all of said time had otherwise exercised a claim of absolute ownership of same, and that for more than 20 years last past, under claim of right, held the actual, hostile, open, notorious, exclusive, and continuous possession of said real estate and every part thereof. Rosa M. B. Hitt and Arza B. Hitt, who claimed ownership to the interest formerly owned by Mary H. B. Hitt, and William Winchester Hall, filed separate and several answers to the amended complaint. The defendant M. E. Mathieu also filed an answer. The plaintiff Drusilla Carr filed a reply in general denial to each of the special paragraphs of answer. The defendant Mary E. Mathieu also filed a cross-complaint to quiet her title to certain real estate described in the complaint. To this cross-complaint Drusilla Carr filed an answer in general denial. The cause was submitted to a jury upon the issues formed by the pleadings, and at the conclusion of the trial the jury returned a verdict finding that said Drusilla Carr was the owner in fee simple of the lands described in the amended complaint, and that the plaintiffs in this action
[162 N.E. 411]
and said Mary E. Mathieu were claiming an interest in said land, which claims were without right and unfounded. The jury on the...
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