Miedreich v. Lauenstein

• Decision Date: 15 January 1909
• Docket Number: No. 21,137.,21,137.
• Citation: 172 Ind. 140,86 N.E. 963
• Parties: MIEDREICH v. LAUENSTEIN.
• Court: Indiana Supreme Court

172 Ind. 140

86 N.E. 963

MIEDREICH

v.LAUENSTEIN.¹

No. 21,137.

Supreme Court of Indiana.

Jan. 15, 1909.

Appeal from Superior Court, Vanderburgh County; Alexander Gilchrist, Judge.

Action by Frances A. Miedreich against Constanze Lauenstein to set aside a judgment in foreclosure. From a judgment sustaining a demurrer to a paragraph of the complaint, plaintiff appeals. Affirmed.

Wm. P. Miedreich and John Brownlee, for appellant. Peter Maier, for appellee.

MYERS, J.

This was an action by appellant against appellee in the Vanderburgh superior court to vacate a judgment of foreclosure of a mortgage and sale of her property, and for an accounting for rents, and to be permitted to redeem, on the ground that she had no notice of the original action, and that her property had been taken without any notice, or opportunity to be heard. Both parties have treated this action as one arising under the provisions of article 14 of the federal Constitution, as presenting the question of due process of law, and rights guaranteed by the state and federal Constitutions.

A demurrer by appellee was sustained to the fourth paragraph of complaint for want of facts to constitute a cause of action, an exception was reserved, and that ruling is assigned as error here. The fourth paragraph of complaint, so far as the grounds of relief thereby sought are considered, is predicated on the alleged facts: That when the original foreclosure proceedings were had, under which sale of her property was made, appellant was 12 years of age, and not a resident of Vanderburgh county where the actions were brought, but a resident of Gibson county, and had been for many years; that she was not summoned to appear and defend her interests in said action; that she had no knowledge of the pendency of the action, did not waive service of process, nor did any one for her, or in her behalf, or by her consent, enter any appearance for her; that she was not amenable to the jurisdiction of the sheriff of Vanderburgh county, but, notwithstanding the fact that she was not served with process, the sheriff of Vanderburgh county made a false return of a pretended summons, and the court was wrongfully imposed upon by such false return, and being thus falsely advised, at the instance of attorneys for the plaintiff in the cause, appointed a guardian ad litem for her, who filed an answer for her; that a decree was thereupon rendered, her property sold, bid in by the plaintiff in the action; and showing direct privity between the original plaintiff, and the appellee here, and timely application for relief. It is settled in this jurisdiction that such an action may be maintained as a direct attack upon the judgment, certainly so if it can be said to amount to a charge of fraud in procuring notice, or obtaining the judgment. Frankel v. Garrard, 160 Ind. 209, 66 N. E. 687;State v. Hindman, 159 Ind. 586, 65 N. E. 911;Cotterell v. Koon, 151 Ind. 182, 51 N. E. 235;Asbury v. Frisz, 148 Ind. 513, 47 N. E. 328;Kirby v. Kirby, 142 Ind. 419, 41 N. E. 809;Thompson v. McCorkle, 136 Ind. 484, 34 N. E. 813, 36 N. E. 211, 43 Am. St. Rep. 334;Dobbins v. McNamara, 113 Ind. 54, 14 N. E. 887, 3 Am. St. Rep. 626. The paragraph is silent as to what the record shows on the question of notice to appellant, which, in case the complaint could not be said to aver fraud in procuring the process or judgment, would present a different question, for in such case there must be an averment as to what the record shows on the question of notice. Chicago, etc., Co. v. Grantham, 165 Ind. 279, 75 N. E. 265;Layman v. Hughes, 152 Ind. 484, 51 N. E. 1058;Runner, Assignee, v. Scott, 150 Ind. 441, 50 N. E. 479;Bailey v. Rinker, 146 Ind. 129, 45 N. E. 38. The allegations do not present a question of fraudulent conduct on the part of the appellee's predecessor in title, or of his attorneys in procuring a false return, or participation in a fraud upon the court, which is an acknowledged ground of interference of a court of equity. Frankel v. Garrard, 160 Ind. 209, 66 N. E. 687;Brown v. Eaton, 98 Ind. 591;Cavanaugh v. Smith, 84 Ind. 380.

The question is then presented whether the allegations that appellant was a minor, was not a resident of Vanderburgh county, was a resident of Gibson county, and had been for many years, that no summons was served on her, that she had no knowledge of the proceedings, did not waive service, nor did any one for her, or in her behalf, or with her consent, enter appearance for her, that she was not amenable to the jurisdiction of...