Jose v. Indiana Nat. Bank of Indianapolis

• Decision Date: 05 July 1966
• Docket Number: No. 2,No. 20069,20069,2
• Citation: 218 N.E.2d 165,139 Ind.App. 272
• Parties: Oscar A. JOSE, Jr., Appellant, v. The INDIANA NATIONAL BANK OF INDIANAPOLIS, Indiana, Successor Trustee Under the Last Will and Testament of Peter F. Balz, deceased, Realty Sales Corp., an Indiana Corporation, Lalah E. Brown and American Fletcher National Bank and Trust Company, as Executrix and Administrator, CTA, DBN, respectively, of the Estate of Oscar A. Jose, deceased, Appellees
• Court: Indiana Appellate Court

Page 165

218 N.E.2d 165

139 Ind.App. 272

Oscar A. JOSE, Jr., Appellant, v. The INDIANA NATIONAL BANK OF INDIANAPOLIS, Indiana Successor Trustee Under the Last Will and Testament of Peter F. Balz, deceased, Realty Sales Corp., an Indiana Corporation, Lalah E. Brown and American Fletcher National Bank and Trust Company, as Executrix and Administrator, CTA DBN, respectively, of the Estate of Oscar A. Jose, deceased Appellees.

No. 20069.

Appellate Court of Indiana, Division No. 2.

July 5, 1966.

Rehearing Denied Aug. 17, 1966.

[139 INDAPP 273]

Ralph Hamill, John P. Price, Indianapolis, Hollowell, Hamill & Price, Indianapolis, of counsel, for appellant.

Howard P. Travis, Lewis, Bose, Sherwood Blue, Theodore L. Locke, Indianapolis, Royse, Travis, O'Brien & Hendrickson, Indianapolis, of counsel, for appellees.

BIERLY, Judge.

This action arose out of a suit to set aside a judgment and decree, rendered on March 6, 1963, by the Probate Court of Marion County, which purported to quiet title, [139 INDAPP 274] to partition certain real property, and to appoint a commissioner for the sale of such property. The original suit was brought against Realty Sales Corporation and Oscar A. Jose, Sr., and upon his death, personal representatives were duly appointed to continue the suit. Judgment in the original suit was in favor of the Estate of Oscar A. Jose, Sr., and the plaintiff therein.

In the suit to set aside this judgment by Oscar A. Jose, Jr., (Appellant herein), a motion to strike the complaint and dismiss the action was filed by the appellees. The court sustained said motion with prejudice, taking judicial notice of its own records involving the original suit. Further, the court found that the appellant ws not a party to the original suit; that he had no interest in the real estate in question; and, further that the appellant is not a proper party to seek to have said decree set aside.

Appellant assigns as error the following grounds:

1. That the court erred in sustaining appellees' motion to strike the complaint and/or dismiss the action, and rendering judgment thereon.

2. That the court erred in refusing to permit appellant to file an amended complaint.

3. That the court erred in overruling appellants motion for a new trial.

Appellant's argument is based on two points. The first is whether or not the appellees have properly presented the question of the capacity of the appellant in the trial court; and secondly, was the appellant a proper party to file a suit to set aside a judgment?

We shall consider the latter question first.

As a general rule, only a party or his heirs, devisees, or personal representative of the deceased party, may file a suit to set aside the judgment of the original proceedings. Rosencranz v. Tidrington (1927) 199 Ind. 140, 155 N.E. 705; Owen et al. v. Cooper (1874) 46 Ind. 524. [139 INDAPP 275] An exception to this rule exists if there has been a non-joinder of an indispensable party to the original proceedings whose rights have been adversely affected thereby.

The requirements set forth in the above rules of law, were met in the case at hand because the personal representative of Oscar A. Jose, Sr., stepped into his position and prosecuted the litigation pursuant to Burns' § 2--403, 1946 Replacement (1965 Supp.). Under this statute, in survival actions, the personal representative bears the same relation to the suit as if he were the original party. Champ et al. v. Kendrick, Trustee (1891) 130 Ind. 549, 30 N.E. 787.

The only question which can then be raised is whether or not we have an exception to the general rule. The answer to this is in the negative. The court below took judicial notice of its records, and determined this question. In so doing, it was determined that at the time the original action was commenced, there were no other indispensable parties to the litigation, and upon the death of one of the indispensable parties, namely Oscar A. Jose, Sr., his personal representative was duly appointed and proceeded with the action.

Having determined that the appellant did not have the capacity to bring a suit to set aside a judgment, we must now turn to the question involving the method by which the appellee raised the question of incapacity in the trial court.

The appellant, in this cause, maintains that the only pleading in which the legal capacity of the parties to sue can be raised is by demurrer, pursuant to Burns' § 2--1007, 1946 Replacement, or by answer pursuant to Burns' § 2--1011, 1946 Replacement. Generally, this may be true but there are exceptions, and the case at bar is one of them. There is a distinction to be drawn between testing the sufficiency of a complaint and testing the sufficiency of a cause of action. The trial court in this case, could easily ascertain whether or not the appellant could have amended his complaint to state a good cause of action, and it properly did...