Hurst v. Hawkins

• Decision Date: 07 February 1907
• Docket Number: 6,206
• Citation: 80 N.E. 42,39 Ind.App. 467
• Parties: HURST ET AL. v. HAWKINS, GUARDIAN
• Court: Indiana Appellate Court

80 N.E. 42

39 Ind.App. 467

HURST ET AL. v. HAWKINS, GUARDIAN

No. 6,206

Court of Appeals of Indiana

February 7, 1907

39 Ind.App. 467. At 470.

Original Opinion of November 13, 1906, Reported at: 39 Ind.App. 467.

Rehearing denied.

HADLEY J. Roby, P. J., Watson and Rabb, JJ., concur. Myers, C. J and Comstock, J., absent.

OPINION

ON PETITION FOR REHEARING.

HADLEY J.

Appellants have filed a petition for a rehearing in the above cause, and earnestly insist that the opinion heretofore given is erroneous. They base their contention upon the premise that since the summons or notice of appeal was directed to and served upon Flora Hawkins, as guardian of the person and estate of Oliver M. Griffin, this brought Flora Hawkins in her own person before the court and within its jurisdiction. This is a false premise; and appellants, in fact, concede this when they petition this court to permit them to amend the assignment of errors and make her a party thereto. If she is already within the jurisdiction of the court, the insertion of her name in the assignment of errors would make little difference. Flora Hawkins, as guardian of the person and estate of Oliver M. Griffin, in legal contemplation, is an entirely different person from Flora Hawkins in her personal capacity. In re Batchelder (1888), 147 Mass. 465, 18 N.E. 225; Johnson v. Graves (1891), 129 Ind. 124, 28 N.E. 315; Lomerson v. Vroom (1886), 42 N.J. Eq. 290, 11 A. 13. If this were an original proceeding instituted against Flora Hawkins, as guardian of the person and estate of Oliver M. Griffin, and summons had been served on her as such guardian only, surely no one would contend that judgment might be rendered in such proceeding against her personally. When this appeal was taken the appellee named herein had ceased to exist. Notice of this appeal was pretended to be served on this non-existent person. Such an appeal is a fiction, a nullity, as is well established by the authorities cited in the original opinion. Whether this court has the inherent power to relieve against actual fraud and concealment by extending the statutory time for taking an appeal--and this is what is virtually asked for here--we do not decide. Such a power, if ever exercised, should only be invoked in the clearest cases and where the party seeking its aid is wholly without fault. This is not the case here.

The only claim of concealment or deception is of a negative sort. App...