Pattison v. Grant Trust & Sav. Co.
| Decision Date | 23 May 1924 |
| Docket Number | No. 24629.,24629. |
| Citation | 144 N.E. 26,195 Ind. 313 |
| Court | Indiana Supreme Court |
| Parties | PATTISON et al. v. GRANT TRUST & SAVINGS CO. et al. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Grant County; G. H. Henry, Special Judge.
Proceeding by the Grant Trust & Savings Company, as administrator of the estate of James I. Hogston, deceased, and others, in which Mary A. Pattison and other heirs filed cross-complaint. Transferred from Appellate Court under section 1397, Burns' Ann. St. 1914. Judgment for the administrator, and cross-complainants appeal. Affirmed.
Wm. H. Eichhorn, of Bluffton, and Wm. J. Houck and John A. Kersey, both of Marion, for appellants.
Stricler & Messick, Van Alta & Clawson, and David M. Bell, all of Marion, for appellees.
Appellee the Grant Trust & Savings Company, as administrator of the estate of James I. Hogston, deceased, filed its petition herein to sell the real estate of said decedent to make assets with which to pay the debts of said estate. Said petition alleged that a part of the indebtedness of said estate consisted of five judgments, amounting to about $15,000, which had been rendered against said decedent in his lifetime; the judgment creditors in said five judgments being Richard A. Hogston, Emma Jaqua, and Emma Frelof Jaqua, who are also appellees herein. The appellants are two of the children of said decedent and were made defendants to said petition to sell.
Appellants filed a partial answer to said petition, in which answer it was alleged that said judgments were rendered upon notes which were forgeries and which had been procured through fraud and by duress and without consideration. It was also alleged that said decedent, at the time the judgments were rendered, was under guardianship as an infirm person, and that he was weak physically and mentally and unable to be present in court when said judgments were rendered. It is then alleged that said judgments were procured through the fraud and collusion of the judgment plaintiffs with the guardian and his attorney, and also that through the fraudulent conduct of another son of the decedent no defense was made to said actions. It is alleged that said judgments are void, and appellants say that there is no necessity to sell said real estate to pay such judgments, and ask that only so much of the real estate be ordered sold as is necessary to satisfy other debts of said estate. The court upon motion of appellees struck out parts of said answer which sought to attack the validity of said judgments and of the notes upon which they were framed, because of alleged fraud in the procurement of said notes.
Appellants filed a cross-complaint and made defendants thereto the administrator of said estate, the judgment plaintiffs in said five judgments, and also Alfred Hogston, Thomas D. Barr, and the Citizens' Trust & Savings Company. Said cross-complaint was in the nature of an action to set aside said judgments on the ground of fraud practiced in obtaining them. It is alleged in said cross-complaint that said five judgments were rendered upon notes which were spurious and were obtained through duress practiced by said Alfred Hogston; that said Alfred Hogston obtained a series of spurious notes from said decedent by fraud and duress and distributed some of them to the said judgment plaintiffs, and that he sold one of said notes to Thos. D. Barr and one to the Citizens' Trust & Savings Company. It is then alleged that said five judgments were obtained through the fraud of the judgment plaintiffs and said Alfred Hogston. It is alleged that at the time suits were brought by said Richard A. Hogston, Emma Jaqua, and Emma Trelof Jaqua, the said James I. Hogston was under guardianship and unable to assist in any defense to said notes, and that said plaintiffs and Alfred Hogston fraudulently prevented any defense being made thereto and fraudulently induced the guardian of said James I. Hogston to believe that said notes were valid. It is also alleged that said parties prevailed upon said guardian to prevent other attorneys employed by the appellants from appearing in said suits and defending the same. The prayer of said cross-complaint was that said five judgments be set aside and that the appellants be permitted to set up said defenses to said notes and for other proper relief. The court upon motion dismissed said cross-complaint as to Alfred Hogston, the Citizens' Trust & Savings Company, and Thos. D. Barr.
The issues were closed by general denials.
The appellants filed with their cross-complaint separate lists of interrogatories which they asked that Alfred Hogston, Emma Jaqua, and Emma Trelof Jaqua be required to answer. These interrogatories all related to the validity of the notes upon which the judgments were rendered and concerned the consideration therefor and the circumstances under which they were given. The court upon motion struck out all of said interrogatories.
Said cause was submitted to the court, and there was a finding and judgment for the administrator upon his petition to sell and against the cross-complainants upon their cross-complaint, and said land was ordered sold, and there was a judgment against appellants for costs upon the cross-complaint.
[1] Appellants filed a motion for a new trial, which contained many alleged reasons, but the only stated reason referred to in appellants' statement of points and authorities in their brief is that the finding of the court is not sustained by sufficient evidence. The court overruled the moton for a new trial.
The appellants have assigned as error in this court the following:
“(1) The court erred in sustaining the motion to strike out parts of the amended partial answer, as to the first paragraph of the motion.
(2) The court erred in sustaining the motion to strike out parts of the amended partial answer, as to the second paragraph of the motion.
(3) The court erred in striking out the interrogatories to Alfred Hogston.
(4) The court erred in striking out the interrogatories to Richard A. Hogston.
(5) The court erred in striking out the interrogatories to Emma Jaqua.
(6) The court erred in striking out the interrogatories to Emma Frelof Jaqua.
(7) The court erred in sustaining the motion of Alfred Hogston to dismiss the amended cross-complaint as to himself.
(8) The court erred in sustaining the motion of the Citizens' Trust & Savings Company to dismiss the amended cross-complaint as to it.
(9) The court erred in sustaining the motion of Thomas D. Barr to dismiss the amended cross-complaint as to himself.
(10) The court erred in overruling the motion for a new trial.”
There are no points or propositions stated in appellants' brief referring to or under the heading of either the first or second assignment of errors. Under rule 22 of this court such alleged errors are waived. Baker v. Stehle (1918) 187 Ind. 468, 119 N. E. 4.
[2] Propositions 1 to 12, inclusive, of appellants' brief, in so far as they refer to any specific assignments of error, refer to assignments numbered 3, 4, 5, and 6, which challenge the action of the court in striking out the several sets of interrogatories. These interrogatories all sought to elicit information relating to the validity of or consideration for the notes upon which the judgments were rendered.
Appellants take the position that the five judgments referred to in the pleadings are void as judgments; that they only have the effect of allowances against the guardianship, and that when the ward died and the guardianship was ended, the allowances were extinguished; that no personal judgment could be rendered against the ward, and that the validity of the notes upon which the judgments were rendered is in question in this proceeding, so that interrogatories relating to the validity of such obligations and the circumstances of their creation are pertinent.
There is in fact only one question raised by the action of the court in striking out the interrogatories propounded to the several parties, and that question is whether, in a proceeding brought by an administrator to sell real estate of a decedent to make assets with which to pay judgments rendered against the decedent in his lifetime, the heirs can attack the validity of notes upon which the judgments were obtained, where the judgment debtor, at the time the actions were brought and judgments obtained, was under guardianship as a person of unsound mind, but which notes were claimed to have been executed before he became of unsound mind and before the guardianship.
We think the answer must be that under the circumstances stated in the question, the rendering of the judgments upon said notes was an adjudication of the validity of the same, and the heirs cannot set up in the proceedings to sell any defense which either was or might have been litigated in the actions on the notes.
Appellants contend that the rendering of the judgments in such cases was only equivalent to making an allowance against the guardian for such amounts, and that such allowances were extinguished when the guardianship was terminated.
If the actions had been against the guardian upon contracts or obligations of the guardian, then, so far as the estate of the ward was concerned, the judgments rendered could not have been enforced by execution against the ward's property; but the court having jurisdiction of the ward's estate could have ordered them paid out of such estate, or, if the guardian paid them, he would have been entitled to reimbursement out of such estate, providing they were proper charges against said ward. Rooker v. Rooker (1878) 60 Ind. 550;Kinsey v. State ex rel. (1880) 71 Ind. 32;Stumph v. Goepper (1881) 76 Ind. 323;Vogel v. Vogler (1881) 78 Ind. 353;Ray v. McGinnis (1882) 81 Ind. 451;Elson v. Spraker (1885) 100 Ind. 374;Lewis v. Edwards (1873) 44 Ind. 333;Turner v. Flagg (1893) 6 Ind. App. 563, 33 N. E. 1104;Hall v. Ferguson (1900) 24 Ind. App. 532, 57 N. E. 153.
If such judgments or allowances against the...
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