Judd v. Gray

• Citation: 59 N.E. 849,156 Ind. 278
• Parties: JUDD et al. v. GRAY.
• Decision Date: 07 March 1901
• Court: Supreme Court of Indiana

156 Ind. 278

59 N.E. 849

JUDD et al.

v.GRAY.

Supreme Court of Indiana.

March 7, 1901.

Appeal from circuit court, Pulaski county; Enoch Myers, Judge.

Proceedings by Jennie A. Gray, guardian, against Curtis J. Judd and others. From a decree in plaintiff's favor, defendants appeal. Reversed.

E. P. Hammond, Jr., Steis & Hathaway, M. Winfield, and Stuart, Hammond & Simms, for appellants. J. C. Nelson, McConnell & Jenkines, and Nelson & Myers, for appellee.

JORDAN, J.

Preliminary to the consideration of the questions involved in this cause, the following may be said to be the history of the litigation leading up to the appeal: The facts disclose that in 1893, and for some years prior thereto, Thomas Gray, the husband of Jennie A. Gray, who appears as the guardian of the former in this cause, was the owner in fee simple of 560 acres of valuable land situated in Pulaski county, Ind. On July 18, 1893, he, together with his said wife, in pursuance of a previous contract with one Charles Y. Trice, a real-estate agent, conveyed said lands to appellant Curtis J. Judd, the latter taking such lands subject to the payment of a mortgage lien thereon of $5,200. As a part of the dealings, and as a part of the consideration of said conveyance to Judd, Trice procured a conveyance to be made by certain parties to said Thomas Gray of lands situated in the state of Kansas. In the spring of 1894, Gray and his wife removed from Pulaski county, Ind., to Kansas, and located on a portion of the land which had been obtained by Gray by virtue of his dealings with Trice. In December of the latter year, while Thomas Gray was still residing in Kansas, and prior to his being adjudged a person of unsound mind, he, through certain attorneys, commenced an action in the circuit court of Pulaski county, Ind., against Judd, Trice, and one Charles L. Romberger, to set aside his conveyance to Judd of the Pulaski county lands. This action, it appears, was based upon the grounds of fraud upon the part of these defendants in securing the conveyance of said land from Gray. After the institution of this action such proceedings were had therein as resulted in the filing by the defendants Judd and Romberger of a cross complaint to quiet their title against the plaintiff to the lands involved in the suit. An answer in denial to the cross complaint was filed by the attorneys representing the plaintiff. Subsequently, on April 16, 1895, Gray's attorneys dismissed and withdrew his complaint, and also withdrew his appearance to the cross complaint of the defendants Judd and Romberger, and thereupon Gray was defaulted, and upon such default judgment was rendered against him quieting the title of the cross complainants to the lands in dispute. The matter appears to have rested in this condition until about January 1, 1896, when Gray and his wife returned from Kansas to this state, and became residents of Pulaski county. On the 28th day of the latter month, by proceedings had in the Pulaski circuit court, Thomas Gray was adjudged to be a person of unsound mind, and incapable of managing his estate, and his wife, Jennie A., appellee herein, was appointed his guardian. On February 17, 1896, under the provision of section 399, Burns' Rev. St. 1894 (section 396, Rev. St. 1881; section 396, Horner's Rev. St. 1897), appellee, as such guardian, filed her verified petition in the Pulaski circuit court to set aside the default of her ward, and have him relieved of the judgment rendered by that court quieting the title of Judd and Romberger to the Pulaski county land. This section, among other things, provides that the court “shall relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect, and supply an omission in any proceedings on complaint or motion filed within two years.” The petition, under the facts therein alleged, proceeds upon the theory that the ward, Thomas Gray, was insane at the time he conveyed the lands in question, and that he was of unsound mind at the time the judgment in controversy was rendered against him, and therefore for this reason it was sought to have the court adjudge that his default or failure to defend the action instituted by Judd and Romberger by their cross complaint was excusable. The petition also alleged facts disclosing that the ward had a meritorious defense to said action to quiet title, which defense was to the effect that the conveyance by him of the lands in controversy was obtained by means of fraud, and without any consideration, at the time when he was of unsound mind, etc. The prayer thereof was that the judgment and default be set aside, and that the petitioner be permitted, as guardian, to appear in behalf of the ward, and defend the action instituted by the cross complaint. Such proceedings were had on said petition as resulted in the judgment in dispute being set aside or vacated, and in permitting appellee to appear, and defend said action. After the judgment was vacated, the cause was finally docketed, whereby Judd and Romberger, the original cross complainants, became plaintiffs, and appellee became a defendant, and was granted permission by the court to file a cross complaint against the plaintiffs and others, which was accordingly filed; and she also filed her answer in general denial to the complaint of Judd and Romberger to quiet their title. By the second paragraph of the guardian's cross complaint she sought to set aside the deed of conveyance of July 18, 1893, of the Pulaski county lands by her ward to appellant Judd on the ground of his insanity at the time of said conveyance. Under the third paragraph of her cross complaint she sought to quiet title to the same lands. Issues were joined between the parties upon their respective pleadings, and the cause upon trial was submitted to the jury, which returned a general verdict in favor of appellee, and also returned answers to numerous interrogatories propounded. Judgment was rendered on the general verdict in favor of appellee setting aside the conveyance in controversy, and quieting title to the lands involved. Judd, Romberger, and others, who were adverse parties to appellee, severally filed motions for a new trial and motions to modify the judgment, all of which were overruled, and exceptions reserved. Appellants have filed assignments in this court whereby the questions involved are properly presented.

Thomas Gray, as shown, at the time of the rendition of the judgment had not been judicially declared to be a person of unsound mind. It is, therefore, insisted by counsel for appellants that, although he was insane at the time of the rendition of the judgment quieting title upon the cross complaint of Judd and Romberger, still that does not furnish grounds for nor justify the court in setting aside such default, and in relieving him, through the application of his guardian, from the force and effect of such judgment. Counsel further contend that the fact that Gray may have been of unsound mind at the time the judgment was taken in no manner defeated the jurisdiction of the court, and the judgment rendered must be held valid in all respects, and that section 399 (section 396), supra, does not afford a remedy for relief against such judgment upon the ground of Gray's insanity. Counsel for appellee, upon the other hand, contend that his insanity when the judgment was taken must be held and considered as a sufficient excuse under the statute for his default or failure to make a defense to the cross complaint of Judd and others. They further insist that, as the judgment in controversy was rendered upon said cross complaint without any notice or process being served upon Gray after the dismissal of his action and the withdrawal of his appearance therein, therefore the judgment is void. The original action by which the conveyance to Judd of the Pulaski county lands was assailed was instituted by attorneys acting for Gray, the plaintiff therein, while he was a resident of Kansas. These attorneys claimed to have authority from him to institute and conduct this action in his behalf. He was not personally in court, but remained at his home in Kansas, and acted through the agency of his attorneys. It cannot be assumed that the Pulaski circuit court would have rendered the judgment in controversy had proof been offered, or had it been informed, that Gray at the time was a person of unsound mind, without a guardian. Upon the contrary, we may presume that the court would, under the provisions of the Code (section 317, Burns' Rev. St. 1894), have appointed a guardian ad litem to defend the action, or have suspended further proceedings therein until the necessary steps could have been taken to have his insanity judicially ascertained. The court, in the absence of any proof to the contrary, was bound to assume that Gray, in whose name the action to set aside the conveyance was prosecuted, was a person of sound mind; for, as a general rule, every person of mature age is presumed to be compos mentis, insanity being an exception, which must be proven by him who asserts it. Gray, as we have seen, was the plaintiff, and Judd and Romberger were defendants, in the action mentioned to set aside the conveyance; hence, under the circumstances, no summons or notice to him in respect to the cross complaint was necessary in order to give the court jurisdiction over his person, and require him to answer said complaint; and upon his default or failure to do so the court was authorized to render judgment against him, for the rule is well settled that the dismissal of a complaint in an action by the plaintiff, and a withdrawal of his appearance therein, will not operate, without the consent of the defendant, to carry with it a counterclaim or cross complaint filed by the latter. It is expressly provided by section 356, Burns' Rev. St. 1894, that the defendant shall have the right of proceeding without notice...