Moyer v. Bucks
Decision Date | 29 October 1891 |
Citation | 28 N.E. 992,2 Ind.App. 571 |
Parties | Moyer v. Bucks. |
Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Tippecanoe county; B. W. Langdon, Judge.
Action by Amanda Bucks against Monroe Moyer, as guardian of Dennis Moyer, upon a judgment against said Dennis. Plaintiff obtained judgment. Defendant appeals. Reversed.
John D. Gougar and R. P. Davidson, for appellant. J. B. Milner, for appellee.
The appellant is the guardian of his son, Dennis, a minor, who, until the fall of 1887, was a resident of Tippecanoe county, when it is claimed he left the state, and became a non-resident. It appears that after Dennis left the state, on January 10, 1888, the appellee instituted bastardy proceedings against him before a justice of the peace. The warrant that was issued for his arrest was returned “Not found,” and the justice proceeded with the trial under the statute. He found that Dennis was the father of the appellee's bastard child, and certified the record to the circuit court, where, on the 18th of May following, an affidavit was filed that the defendant was a resident of the state, but had departed therefrom with the intention of avoiding the service of the process, and that his whereabouts was unknown. Notice by publication having been made, the defendant was defaulted, and a personal judgment rendered against him for $500 on the 5th day of October, 1888. This action is a suit upon that judgment, and was brought against the appellant, as guardian of said Dennis, to obtain satisfaction of the judgment out of the assets in his hands for said ward. The complaint is in one paragraph. The appellant demurred to the complaint. The demurrer was overruled, and the appellant answered in four paragraphs, the third and fourth of which set up the facts above stated at length, and with the additional averments that the ward owned no property in the state of Indiana other than that in the hands of the guardian, which consisted of money, and that no attachment or other proceedings had been instituted against said ward, except the bastardy proceedings referred to. A demurrer was sustained to each of these paragraphs. The cause was submitted for trial to the court, and there was a finding in favor of the appellee, upon which, over appellant's motion for a new trial, judgment was rendered. Errors are assigned (1) for overruling the demurrer to the complaint; (2) for sustaining the demurrer to the third paragraph of the answer; (3) for sustaining the demurrer to the fourth paragraph of the answer; (4) for overruling the motion for a new trial. The motion for a new trial challenges the sufficiency of the evidence to sustain the finding.
The principal question thus presented by the record is whether a personal judgment in a bastardy proceeding is or is not void where the record shows on its face that the only service had upon the defendant was notice by publication. The appellee's counsel in their brief say: Looking at the case, then, from the view most favorable to the appellee, the question still remains, may a personal judgment be rendered in a bastardy proceeding against a defendant who has not been arrested or in custody, and upon whom no process has been served, except notice by publication, even though he be a resident of the state, but temporarily absent therefrom? This question, we do not hesitate to say, must be decided adversely to the claims of the appellee We are not unaware of the rule that, where notice is given by publication, the judgment of the court that the publication and affidavit upon which it is based are sufficient to give it jurisdiction is conclusive upon all the parties as against a collateral attack Essig v. Lower, 120 Ind. 239, 21 N. E. Rep. 1090; Goodell v. Starr, 127 Ind. 198, 26 N. E. Rep. 793. But it must be evident that this rule by no means keeps a personal judgment from being void which has been rendered upon no other notice than by publication. In Jackson v. State, 104 Ind. 516, 3 N. E. Rep. 863, the rule was expressed as follows: “If there be a notice of publication, or whatever of this nature the law requires in reference to persons or other matters, its sufficiency cannot be questioned collaterally;” and further on the court say: “It has long been the rule in this state, that, where a court is required to determine whether facts essential to jurisdiction exist, a judgment that they do exist will be conclusive as against collateral attack.”
But what was it the law required the court to determine in those cases, with reference to the notice? By an examination of them, it will be found that the proceedings there were in rem, and no other kind of judgments were sought or obtained. The only fact essential for the court to determine in reference to its jurisdiction was whether the notice and affidavit were sufficient in order to make valid a judgment in rem. There was no occasion to decide whether such notice and affidavit would have been sufficient to warrant a personal judgment. The point was decided, however, in Quarl v. Abbett, 102 Ind. 233, 1 N. E. Rep. 476. Where there is no statute authorizing notice by publication, it is doubtful whether it is good, even for a basis of a judgment in rem; and certainly it could not be claimed successfully that it will authorize a personal judgment, in the absence of a special statute to that effect. Where a personal judgment is sought, it devolves upon the court, as preliminary to the hearing, to determine whether personal service has been had. If it determines this question in the affirmative, and it appears that some personal service was in fact had, the judgment may be ever so irregular or voidable; but it is not void, and will be sufficient to withstand any collateral attack. As a general rule, a personal judgment is absolutely void where it appears upon its face that the court had no jurisdiction either of the person or the subject-matter. Railway Co. v. Hubbard, 116 Ind. 193, 18 N. E. Rep. 611; Kingman v. Paulson, 126 Ind. 507, 26 N. E. Rep. 393; Quarl v. Abbett, 102 Ind. 233, 1 N. E. Rep. 476. Ordinarily, in civil actions, where there is no appearance for the defendant, a summons and service thereof is necessary in order to give the court jurisdiction of the person of the defendant, so that it may render a personal judgment. While a bastardy proceeding is in some sense a civil...
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