Kreite v. Kreite

• Decision Date: 06 March 1884
• Docket Number: 11,050
• Citation: 93 Ind. 583
• Parties: Kreite v. Kreite et al
• Court: Indiana Supreme Court

93 Ind. 583

Kreite v. Kreite et al

No. 11,050

Supreme Court of Indiana

March 6, 1884

From the Dearborn Circuit Court.

O. F Roberts, for appellant.

OPINION

Best C.

The appellant instituted this proceeding to set aside a judgment the appellee Henry Kreite had taken against him, and to enjoin the appellee John C. Sims, sheriff, etc., from collecting an execution then in his hands issued upon such judgment.

The complaint averred, in substance, that the appellee Henry Kreite instituted a suit in the Dearborn Circuit Court against the appellant upon a note of $ 133.60, which he had theretofore made to said Henry; that process was duly served returnable the 9th day of September, 1882, and that appellant employed one John A. Parks, a practicing attorney of said court, to appear and defend said cause; that said Henry was, at the time, indebted to the appellant in the sum of $ 168.10 for personal property had and received by said Henry from the appellant; that said Henry was the son of appellant, lived upon the latter's farm, and when he moved away he carried off and converted to his own use other personal property belonging to appellant of the value of $ 91.50, and that each of said sums was then due and wholly unpaid; that appellant informed said Parks of his several grounds of defence before the return day of said writ, and relied upon him to defend said cause; that thereafter said "Parks pretended, in part, to set up by way of answer his claim against said defendant, but that thereafter said Parks, on the 27th day of September, 1882, well knowing that the plaintiff had a valid and complete defence to said action, and without any authority from the plaintiff, and without his knowledge or consent, wrongfully agreed, suffered and permitted a judgment in said court to be rendered in favor of said Henry upon said note * * * for the sum of $ 136.05 and costs;" that had the appellant known of such agreement, or that such action was to be taken, he would have objected to the same, and would have asserted his defences, but that he knew nothing of it, and did not know that a judgment had been taken against him until the 15th day of March, 1883, when said sheriff demanded the payment of an execution issued upon said judgment; that his defences are valid and can be established, etc. Wherefore he prays that the judgment be set aside, that he be allowed to defend, and the appellees be enjoined from collecting said execution, etc.

A demurrer was sustained to the complaint and final judgment rendered for the appellee. The ruling upon the demurrer is assigned...