Jessup v. Jessup
| Decision Date | 11 October 1893 |
| Docket Number | 884 |
| Citation | 34 N.E. 1017,7 Ind.App. 573 |
| Parties | JESSUP v. JESSUP ET AL |
| Court | Indiana Appellate Court |
From the Greene Circuit Court.
I. H Fowler, W. A. Pickens, E. H. C. Cavins and A. G. Cavins, for appellant.
E Short, for appellees.
The appellant filed her complaint in the court below, alleging in substance, that she is the wife of the appellee, John W Jessup, who is a resident of said Greene county, and a person of unsound mind and incapable of managing his own estate, consisting of personal property and real estate of the value of ten thousand dollars. She then avers, that the appellees Frederick L. Jessup and Charlotte Jessup have the charge and custody of said John W. Jessup; that said Frederick L. Jessup is pretending to act as guardian of said John W., as an insane person, by virtue of an appointment from the Greene Circuit Court, which appointment, she avers, is illegal and void, because made without summons, notice, or process of any character whatever having been issued by the clerk of the Greene Circuit Court against said John W. Jessup, or against any person or persons having charge or custody of him; that no summons, notice or process of any character was ever served upon him or upon any person having charge or custody of him; that the record fails to show that any summons, notice, or process of any kind was ever served on him, and that he never had any notice of said proceedings; that he was not present in court, and that the record of said proceedings show that he was not in court, and that he had no notice whatever of said proceedings. It was also averred that said John W. Jessup resided in said county, and within eight miles of the county seat thereof, at the time said proceedings were instituted and had, and that he could have been produced in court without injury to his health, and that the record of said proceedings does not show that he could not be produced in court. It is also disclosed, by the allegations of the complaint, that the judgment complained of was rendered in September, 1887, and that the appellant did not become the wife of said John W. Jessup until in January, 1889. After alleging that the appellees Frederick L. Jessup and Charlotte Jessup have deprived said John W. Jessup of his property and liberty, she asks that they be required to produce him in court, and that his sanity be inquired into, and, if found to be insane and incapable of managing his estate, that a guardian be appointed, etc.
The complaint is in two paragraphs, the above summary embracing, in substance, all of the material parts of each paragraph.
A demurrer, filed by the appellee Frederick L. Jessup, was sustained to each paragraph of the complaint, and upon this ruling is predicated the errors assigned for review.
We have not been favored with a brief by the appellees, hence are not advised upon what theory the court held the complaint to be insufficient.
The demurrer was addressed to each paragraph, and contained four reasons, namely: First. "That the plaintiff has not the legal capacity to sue." Second. "That neither of said paragraphs states facts sufficient to constitute a good cause of action." Third. "That in each paragraph of the complaint, two causes of action have been improperly joined." Fourth. "That there is in each paragraph of said complaint herein a defect of parties defendant, in this, that Isaiah D. Myers is not a party."
If the complaint stated a cause of action entitling the appellant to some relief, although not all demanded, it was error to sustain the demurrers thereto for want of sufficient facts. Morgan v. Lake Shore, etc., R. W. Co., 130 Ind. 101, 28 N.E. 548.
The theory of the complaint, judging from its general tenor, is an application under the statute (section 2545, R. S. 1881) to have the sanity of said John W. Jessup inquired into, and if found to be of unsound mind and incapable of managing his own estate, for the appointment of a guardian. Section 2545, supra, is as follows: "Whenever any person shall, by statement in writing, represent to the court having probate jurisdiction in any county, that any inhabitant of such county is a person of unsound mind and incapable of managing his own estate, such court shall cause such person to be produced in court, and shall cause an issue to be made by the clerk of such court, denying the facts set forth in such statement; which issue shall be tried by a jury to be impaneled under the direction of said court."
It seems clear, therefore, under this statute, that any person may file the petition; hence, the first cause for demurrer was not well taken.
The facts alleged concerning the appointment of the appellee Frederick L. Jessup, by the Greene Circuit Court, as a guardian of said John W. Jessup, is simply matter in anticipation of defense. While it is not always good or safe pleading, under the code, to anticipate, in a complaint, the defendant's defense, it is often done, and when pleaded and properly avoided, will not weaken the complaint. If a plaintiff anticipates and sets up in his complaint a defense which, if pleaded by the defendant, would be a bar to the action, and he does not also allege facts sufficient to avoid such defense, his complaint will not be sufficient to withstand a demurrer for want of facts. Morgan v. Lake Shore, etc., R. W. Co., supra.
Should Isaiah D. Myers, who filed the petition in the proceedings set forth in the complaint, under which the appellee Frederick L. Jessup claimed to be acting, have been a party to this action? We think not. While he was the petitioner, he was not a party to the judgment, and would not be affected by its reversal. But even if he would be affected, he was not a necessary party, for the reason that this action is not to set aside that judgment, but is an independent action in which that judgment is simply anticipated as a defense. This leads to the consideration of the vital question in the case, viz: Are the facts pleaded sufficient to avoid the defense anticipated in the complaint? Counsel very earnestly insist that the facts pleaded show that the judgment of the Greene Circuit Court, appointing Frederick L. Jessup guardian of his coappellee, John W. Jessup, is void for want of jurisdiction.
It is too well settled to require this court to elaborate on the question, that a personal judgment rendered by a court without jurisdiction of the person is an absolute nullity. Moyer, Guar., v. Bucks, 2 Ind.App. 571, 28 N.E. 992; Mitchell's Admr., v. Gray, 18 Ind. 123; Nicholson v. Stephens, 47 Ind. 185, and cases cited; State, ex rel., v. Ennis, 74 Ind. 17; Cavanaugh v. Smith, 84 Ind. 380.
Jurisdiction over the person of a defendant can be acquired either by service of process, as provided by the statute, or by his voluntary appearance and submission to the jurisdiction. McCormack v. First Nat'l Bank, 53 Ind. 466; Paulus v. Latta, 93 Ind. 34.
It is also well settled that a judgment rendered by a court of competent jurisdiction, which judgment, on its face, appears to be regular, may be voidable, but is not void. Earle v. Earle, 91 Ind. 27; Smith v. Hess, Sheriff, 91 Ind. 424; Kingman v. Paulson, 126 Ind. 507, 26 N.E. 393; Palmerton v....
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