Hitt v. Carr, 10200.

Decision Date15 February 1921
Docket NumberNo. 10200.,10200.
PartiesHITT et al. v. CARR et al.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from Superior Court, Laporte County; H. L. Crumpacker, Judge.

Action by Rosa M. B. Hitt and others against Drusilla Carr and others. From judgment against them on demurrer to the complaint, plaintiffs appeal. Reversed, with instructions.Rabb, Mahoney & Fansler, of Logansport, Leander J. Monks, of Indianapolis, and John R. Cochran, of Chicago, Ill., for appellants.

Crumpacker & Crumpacker, of Hammond, E. G. Ballard, of Gary, and Henry Warrum, of Indianapolis, for appellees.

BATMAN, J.

This is an action by appellants against appellees, seeking relief from a judgment quieting the title of appellee Drusilla Carr to certain real estate, as against appellants Rosa M. B. Hitt and William Winchester Hall and one Arza B. Hitt, from whom appellant Anna M. H. Hitt derives her title. The express averments of the complaint, which is in a single paragraph, when considered in connection with the reasonable inferences to be drawn therefrom, disclose the following facts:

On August 28, 1903, and for many years prior thereto, one Mary H. B. Hitt and appellant William Winchester Hall, both of whom were nonresidents of the state of Indiana, were the owners in fact and of record, by a regular chain of conveyances from the government of the United States, 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, in Lake county, Ind., containing 64.50 acres, more or less. Said land was a waste of sand and sloughs, incapable of producing any sort of vegetation, and had never been cultivated in any manner, but said owners had always paid the taxes thereon since acquiring the title thereto. On said August 28, 1903, the said Hitt and Hall having discovered that certain persons, including Drusilla Carr and her two sons, had occupied a portion of said land as squatters in small buildings, commonly called “shacks,” during the fishing seasons, they commenced an action in the Lake circuit court against Seward Lightner and others to quiet their title to said land, and made said Drusilla Carr a party defendant thereto, but named and described her in the complaint in said action as Rosela Carr. On said date a summons was duly issued by the clerk of said court, directed to the sheriff of said county, commanding him to summon each of the defendants named in said complaint. On or about September 11, 1903, said sheriff, by one of his deputies, served said summons personally upon said Drusilla Carr; she being one of the appellees in this action. On December 14, 1905, said Lake circuit court made a record in said cause, under a caption in which the name Rosela Carr appeared as a defendant, and the name Drusilla Carr did not appear, reciting that by the summons issued therein, and the return of the sheriff thereto, it appeared that all of the defendants in said cause, except Rodman Castle, had been duly served with process therein at least ten days before the first day of the term, and that the cause was dismissed as to said Castle. On March 7, 1907, a further record was made in said cause, under a like caption, reciting that the defendants, having been served with process as theretofore shown and failing to appear, were duly called, but wholly made default, and that the cause was thereupon submitted to the court for trial; that a finding was made that the plaintiffs were the owners of said real estate, and that the defendants had no interest therein. Said record further discloses that a judgment was rendered on said finding quieting the title of said Hitt and Hall to said real estate against all of the defendants in said action. Said judgment has never been set aside, modified, or reversed, and is now, and has been continuously since March 7, 1907, in full force and effect. The clerk of the Lake circuit court did not enter in the final record book in his office, nor in any other book therein, a complete record of the proceedings in said cause within one month after the final determination thereof, nor at any other time, nor did said clerk at any time record the complaint, summons, or return thereto, or any other pleading or paper filed in said cause, and made no record of any part of the proceedings therein, except as stated above.

In the year 1909 appellant Rosa M. B. Hitt and one Arza B. Hitt became the owners of the interest of the said Mary H. B. Hitt in said real estate, by successive deeds of conveyance, which were duly recorded. The said Arza B. Hitt subsequently departed this life testate, leaving his interest in said real estate to his wife, the appellant Anna M. H. Hitt, as his sole devisee, and to whom letters testamentary were issued by a probate court in the state of Texas, pursuant to the provisions of the will of said decedent. On April 21, 1908, the said Drusilla Carr filed a suit against said Mary H. B. Hitt and said William Winchester Hall to quiet her title to said real estate, but the same was afterwards dismissed by her on February 16, 1911, without a trial being had. On the same day said cause was dismissed she began another suit against the said Hitt and Hall for the same purpose, and to which other persons were also made defendants. The said Rosa M. B. Hitt and Arza B. Hitt entered their appearance in said cause, and with the said William Winchester Hall filed separate and several answers to the complaint therein, each consisting of three paragraphs. The first paragraph of each was a general denial, the second paragraph of each was a plea of former adjudication, based on the judgment in said action of Hitt and Hall v. Lightner and Others, and the third paragraph of each was a disclaimer of any interest as to the other real estate not involved in the present action. One Mary E. Mathieu, who was also a defendant in said action, filed two affirmative paragraphs of answer to the complaint, the first of which was identical with the second paragraph of each of the answers mentioned above. She also filed a cross-complaint against the said Drusilla Carr, by which she sought to quiet her title to certain real estate described in the complaint. Issues were duly joined on said affirmative paragraphs of answer and on said cross-complaint by general denials. The issues formed by said pleadings were submitted to a jury for trial, resulting in a verdict in favor of the said Drusilla Carr, and on which the court on May 17, 1912, rendered a judgment quieting her title to said real estate against all the defendants in said action.

On the trial of said cause said Drusilla Carr did not introduce in evidence any instrument in writing of any kind, conveying or purporting to convey said real estate to her, and did not claim, or attempt to prove, that she had any right or title to or interest therein, except that by reason of her occupancy thereof for more than 20 years prior to the commencement of said action, under a claim of right and color of title, she had acquired title to said real estate by adverse possession. On said trial the answering defendants made proof of the loss of the summons in said cause of Hitt and Hall v. Lightner and Others. They then attempted to introduce in evidence an abstract of the title to said real estate, completed about July 9, 1906, which showed that the summons issued in said cause last named had been served on said Drusilla Carr on September 11, 1903, but said abstract was excluded by the court for the sole reason that the witness who testified that he had made the same was unable to state positively that he remembered having compared the abstract with the original summons in said cause. Thereupon said defendants offered in evidence duly certified copies of the two order book entries in said cause of Hitt and Hall v. Lightner and Others, made on December 14, 1905, and March 7, 1907, respectively, as stated above, but the same were excluded by the court on the sole ground that it did not appear therefrom that the said Drusilla Carr was a party thereto. On the trial of said cause there was no other evidence, either oral or documentary, introduced or offered as to the return to the summons issued in said cause of Hitt and Hall v. Lightner and Others, or to show that said summons was served on Drusilla Carr.

The answering defendants in the cause of Carr v. Hitt, Hall, and Others first learned of the pendency of an action against them by said Drusilla Carr to quiet her title to the real estate in question on or about January 1, 1909. They immediately employed attorneys to represent them in said matter, and to make preparations to defend against any claim she might attempt to assert with reference thereto. They made, and caused others to make, diligent search for the papers in said cause of Hitt and Hall v. Lightner and Others, including the summons issued therein, in the office of the clerk of said Lake circuit court, in the office of the sheriff of said Lake county, in the offices of said abstractor of titles, and of the attorney for the plaintiffs in said cause, but were unable to find the same. Following this failure they made diligent efforts to find other evidence by which the contents of the return to said summons could be shown, and to that end interviewed the person who was sheriff of said county at the time said summons was served, and learned from him that he had no recollection with reference thereto. They ascertained from him that the names of the persons who had acted as his deputies during his term of office were John C. Agnew, Albert R. Morris, and L. H. Kilbourn. Their said attorneys thereupon interviewed each of said persons in a furtherance of their effort to ascertain the facts in question, but to no avail. After making said efforts, said answering defendants and their said attorneys were compelled to go into a trial of said cause of Carr v. Hitt, Hall, and Others...

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