Papuschak v. Burich

• Decision Date: 02 June 1933
• Docket Number: No. 14202.,14202.
• Parties: PAPUSCHAK v. BURICH et al.
• Court: Indiana Appellate Court

97 Ind.App. 100

185 N.E. 876

PAPUSCHAK

v.BURICH et al.

No. 14202.

Appellate Court of Indiana, in Banc.

June 2, 1933.

Appeal from Superior Court, Lake County; Claude V. Ridgely, Judge.

Suit by George Papuschak against Matt Burich, L. C. Silverman, and others, in which the last-named defendant filed cross-complaint. From an adverse judgment, plaintiff appeals.

Judgment reversed, and cause remanded, with directions.

Sheehan & Lyddick, of Gary, for appellant.

Louis D. Kuss, of Gary, for appellees.

DUDINE, Judge.

The facts of this case as found by the court are, in substance, that on February 12, 1917, and for several years prior thereto, the City & Harbor Land Company was the owner of certain real estate; on said day, said real estate was regularly sold to First Mortgage Loan Company for delinquent taxes; said real estate was not redeemed from said tax sale, but on August 21, 1919, a tax deed therefor was duly executed to said First Mortgage Loan Company, which tax deed was duly recorded on August 22, 1919.

On October 8, 1918, said City & Harbor Land Company executed and delivered to Mary Primrich a warranty deed to said real estate, which was recorded on the same day that the tax deed was recorded.

Mary and her husband conveyed said real estate to Julia Papuschak by warranty deed on September 4, 1919, which deed was recorded October 10, 1919.

Said First Mortgage Loan Company, purchasers at the tax sale, conveyed said real estate to appellant by quitclaim deed on March 9, 1922.

On March 17, 1922, appellant filed suit to quiet title to said real estate, in cause numbered 21489, in which cause he named Julia Burich, formerly said Julia Papuschak, and Frank Burich, her husband, as parties defendant together with other defendants. Said Julia Burich and her husband were defaulted, and judgment was rendered on May 22, 1922, quieting title to said real estate in appellant as against them.

On April 25, 1923, said Julia Burich and her husband filed suit to set aside said default judgment. This cause was numbered 23117. Appellant was named as a party defendant, but no service was had on appellant, and nothing was done in the cause until March 3, 1924, when it was dismissed for want of prosecution.

In the next term of court said Julia Burich moved the court to set aside said dismissal, and the court ordered a summons for appellant to be issued, returnable June 30, 1924. The return on the summons was as follows: “Service on the within named defendant George Papuschak, by leaving a true copy of the same at his last and usual place of residence this 20th day of June, 1924.” Said summons designated the address of appellant as being 1595 Cleveland street (Hammond, Ind.). “The following June (July) 3rd, 1924,” service by said summons was shown, and appellant was defaulted, and judgment was rendered setting aside the judgment in said cause No. 21489 as to said Julia Burich and her husband.

July 3, 1924, after the court had set aside said judgment, as aforesaid, said Julia Burich filed an answer in said cause No. 21489, praying that the title to said real estate be quieted in her.

The cause was submitted to the court for trial on November 12, 1924, in the absence of appellant and without his knowledge, and the court rendered judgment in favor of said Julia Burich, quieting the title in her.

April 22, 1925, Julia Burich and her husband executed a warranty deed to said real estate to appellee Matt Burich, and appellee Matt Burich and wife executed a deed therefore to appellee Elsie Silverman, which was recorded March 14, 1929.

Appellant did not live at 1595 Cleveland street, but lived in the city of Gary, from 1922 to 1927. He had no knowledge of the issuance of said summons, and knew nothing about the proceeding to set aside said judgment until 1927.

This is an appeal from the judgment in a second suit to quiet title brought by appellant. The complaint was in two paragraphs, and it named all appellees as defendants. The first paragraph was the usual form of complaint to quiet title which alleged that appellees, without foundation, claimed an interest in the real estate which was adverse to his title. In the second paragraph he alleged the same facts, with the addition that he acquired title by virtue of a tax deed in 1919, and since said date he had paid taxes and special assessments in the amount of $771.05, and he prayed a quieting of his title, but, if the title could not be quieted, that he be given a prior lien for said taxes. Appellees George Silverman and Elsie Silverman, his wife, filed answers in general denial, and appellee Elsie Silverman filed a cross-complaint in two paragraphs praying a judgment quieting title to the same real estate in herself. One paragraph of her cross-complaint was in the usual form of complaint to quiet title, alleging that appellant claimed, without foundation, an interest which is adverse to hers. The other paragraph of complaint set forth the same facts, and in addition alleged the chain of her title. All other appellees filed disclaimers. (Hereafter, in this opinion, the word appellee means appellee Elsie Silverman.)

The issue presented by appellee's cross-complaint was closed by appellant's answer, and the cause was tried by the court, who, upon request, made a special finding of facts as heretofore indicated and rendered conclusions of law in favor of appellee and against appellant, and rendered judgment quieting title to said real estate in appellee.

The conclusions of law were, first, that the law is with the appellee on her answer and cross-complaint; third, that appellee have judgment on her cross-complaint, quieting her title to said real estate. (In view of the result reached in this opinion, it is unnecessary to set out the second conclusion of law.)

The assigned errors which are not waived and which are determinative of this appeal are that the court erred in its conclusions of law numbered 1 and 3.

The court found...