Moyer v. Bucks

Citation28 N.E. 992, 2 Ind.App. 571
Case DateOctober 29, 1891
CourtCourt of Appeals of Indiana

2 Ind.App. 571
28 N.E. 992

Moyer
v.
Bucks.

Appellate Court of Indiana.

Oct. 29, 1891.


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.

REINHARD, J.

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

[28 N.E. 993]

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: “As we conceive it, the question is, can a personal judgment be rendered against a citizen of this state who has left the state to avoid the service of process? The affidavit for publication states that Dennis Moyer, the ward, is a resident of the state. The notice treats him as a non-resident; so does the order of court. We submit that the affidavit characterizes the proceedings and is the basis of it, and under the statute, though the subsequent proceedings are irregular, some notice was given, and it is sufficient.” 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...

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8 practice notes
  • Winstead v. Koonce, No. 30011
    • United States
    • Indiana Supreme Court of Indiana
    • March 14, 1961
    ...the above statute and hence would be a nullity and void. Sowders v. Edmunds et al., 1881, 76 Ind. 123; Moyer, Guardian v. Bucks, 1891, 2 Ind.App. 571, 28 N.E. 992, 16 L.R.A. 231; Pattison v. Grant Trust etc., Co., Adm., 1924, 195 Ind. 313, 144 N.E. 26; 2 Gavit, Ind.Pl. & Pr., § 213(e)(6); 1......
  • State v. Johnson, No. 33606.
    • United States
    • Supreme Court of Minnesota (US)
    • February 11, 1944
    ...to § 257.18, subd. 2 (§ 3270), the court is powerless to proceed until he has been arrested and brought before it. Moyer v. Bucks, 2 Ind.App. 571,28 N.E. 922,16 L.R.A. 231, 50 Am.St.Rep. 251. Of course he could have waived arrest under the warrant and appeared voluntarily. Coolbeth v. Gove,......
  • State v. Johnson, No. 33606.
    • United States
    • Supreme Court of Minnesota (US)
    • February 11, 1944
    ...subd. 2 (§ 3270), the court is powerless to proceed until he has been arrested and brought before it. Moyer 216 Minn. 429 v. Bucks, 2 Ind.App. 571, 28 N.E. 992, 16 L.R.A. 231, 50 Am.St.Rep. 251. Of course he could have waived arrest under the warrant and appeared voluntarily. Coolbeth v. Go......
  • Grantham Realty Corp. v. Bowers, No. 15862.
    • United States
    • February 7, 1939
    ...collateral attack on said judgment. Goodell et ux. v. Starr et al., 1891, 127 Ind. 198, 26 N.E. 793;Moyer, Guardian, v. Bucks, 1891, 2 Ind.App. 571, 573, 28 N.E. 992, 16 L.R.A. 231, 50 Am.St. Rep. 251. [7] The conclusions of law do not rest upon any theory of estoppel, hence, it was not nec......
  • Request a trial to view additional results
8 cases
  • Winstead v. Koonce, No. 30011
    • United States
    • Indiana Supreme Court of Indiana
    • March 14, 1961
    ...the above statute and hence would be a nullity and void. Sowders v. Edmunds et al., 1881, 76 Ind. 123; Moyer, Guardian v. Bucks, 1891, 2 Ind.App. 571, 28 N.E. 992, 16 L.R.A. 231; Pattison v. Grant Trust etc., Co., Adm., 1924, 195 Ind. 313, 144 N.E. 26; 2 Gavit, Ind.Pl. & Pr., § 213(e)(6); 1......
  • State v. Johnson, No. 33606.
    • United States
    • Supreme Court of Minnesota (US)
    • February 11, 1944
    ...to § 257.18, subd. 2 (§ 3270), the court is powerless to proceed until he has been arrested and brought before it. Moyer v. Bucks, 2 Ind.App. 571,28 N.E. 922,16 L.R.A. 231, 50 Am.St.Rep. 251. Of course he could have waived arrest under the warrant and appeared voluntarily. Coolbeth v. Gove,......
  • State v. Johnson, No. 33606.
    • United States
    • Supreme Court of Minnesota (US)
    • February 11, 1944
    ...subd. 2 (§ 3270), the court is powerless to proceed until he has been arrested and brought before it. Moyer 216 Minn. 429 v. Bucks, 2 Ind.App. 571, 28 N.E. 992, 16 L.R.A. 231, 50 Am.St.Rep. 251. Of course he could have waived arrest under the warrant and appeared voluntarily. Coolbeth v. Go......
  • Grantham Realty Corp. v. Bowers, No. 15862.
    • United States
    • February 7, 1939
    ...collateral attack on said judgment. Goodell et ux. v. Starr et al., 1891, 127 Ind. 198, 26 N.E. 793;Moyer, Guardian, v. Bucks, 1891, 2 Ind.App. 571, 573, 28 N.E. 992, 16 L.R.A. 231, 50 Am.St. Rep. 251. [7] The conclusions of law do not rest upon any theory of estoppel, hence, it was not nec......
  • Request a trial to view additional results

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