Kleyla v. Hasket

• Citation: 112 Ind. 515,14 N.E. 387
• Parties: Kleyla et al. v. Hasket et al.
• Decision Date: 09 December 1887
• Court: Supreme Court of Indiana

112 Ind. 515

14 N.E. 387

Kleyla et al.

v.Hasket et al.

Supreme Court of Indiana.

December 9, 1887.

Appeal from circuit court, Clinton county; A. E. Paige, Judge.

Martin Kleyla et al. brought this action against John Hasket et al. to set aside a certain judgment. In the circuit court judgment was rendered in favor of the defendants, and the plaintiffs appealed.

Joshua Jones, for appellants. Waugh & Kemp, for appellees.

Elliott, J.

The appellants' complaint seeks to set aside a judgment rendered by the Tipton circuit court in a drainage case. Several irregularities are pointed out in the proceedings of the court, but these irregularities are not available in this collateral attack. It is too well settled to require the citation of authorities that mere irregularities cannot be taken advantage of in a collateral attack upon the judgment of a court of competent jurisdiction. If the appellants' complaint showed that the court had no jurisdiction of the cause in which the judgment was rendered, it would undoubtedly be good; but this is not shown. The allegations bearing on this point are these: “On the seventh day of February, 1882, a pretended affidavit was presented to the court stating that notice had been given of the intention to file said petition, but in truth and in fact no notice of any kind was ever given, as required by law, of the intention to file said petition; and that no sufficient affidavit was ever filed in said court showing that notice had been given as required by law.” These allegations are plainly insufficient. They are the mere conclusions of the pleader; for whether notices are or are not sufficient, or are not such as are required by law, is a question to be decided by the court, and not by the pleader. Singer, etc., Co. v. Effinger, 79 Ind. 264. The vice in these allegations is that of a negative pregnant, for they admit there was some notice, but deny that it was sufficient in law. If there was some notice, and the court adjudged it sufficient, the judgment cannot be collaterally attacked, although the notice was defective Muncey v. Joest, 74 Ind. 409;McAlpine v. Sweetser, 76 Ind. 78;Hume v. Conduitt, Id. 598; Stout v. Woods, 79 Ind. 108;Cavanaugh v. Smith, 84 Ind. 380;Quarl v. Abbett, 102 Ind. 233, 1 N. E. Rep. 476; Jackson v. State, 104 Ind. 516, 3 N. E. Rep. 863, and authorities cited; McMullen v. State, 105 Ind. 334, 4 N. E. Rep. 903; Pickering v. State, 106 Ind. 228, 6 N. E. Rep. 611.

The allegations are...