Pence v. Aughe

Decision Date03 April 1885
Docket Number11,621
Citation101 Ind. 317
PartiesPence v. Aughe, Guardian
CourtIndiana Supreme Court

From the Clinton Circuit Court.

The judgment is reversed with costs.

E. A Greenlee and I. W. Parsons, for appellant.

A. E Paige and S. O. Bayless, for appellee.


Howk J.

The first error assigned by the appellant, Carrie Pence, upon the record of this cause, is the overruling of her demurrer to appellee's complaint.

In his complaint the appellee, as guardian of Aaron W. Pence, a person of unsound mind, alleged that theretofore, at the ----- term of the court below, he was duly appointed the guardian of Aaron W. Pence, who was then and there adjudged by the court to be of unsound mind; that appellee qualified and entered upon the discharge of his duties as such guardian; that Aaron W. Pence was of unsound mind and was extremely weak, physically and mentally, to such an extent as to render him wholly unfit to care for himself, or to comprehend and understand the effect and purport of any contract he might enter into or be induced to make; that the defendant Carrie Spriggs was a woman about forty or forty-five years of age; that, on July 30th, 1883, Carrie Spriggs represented to the clerk of the Tippecanoe Circuit Court that she was a bona fide resident of Tippecanoe county, and procured from such clerk a marriage license, authorizing her marriage to and with Aaron W. Pence; that on Sunday, September 9th, 1883, Carrie Spriggs and Aaron W. Pence procured a carriage and went to the place about two miles in the country, away from the influence and control of the guardian and relations of Aaron W. Pence, and under the pretended authority of such marriage license, and by the services and ceremonies performed by a minister of the gospel, a pretended marriage ceremony was performed, having for its primary object and purpose the union of Aaron W. Pence and Carrie Spriggs in the holy bonds of matrimony; that Carrie Spriggs had ever since claimed to be the wife of Aaron W. Pence, and claimed an interest in his property and her support from the same, as if she were his lawful wife, and had assumed the name of Carrie Pence, by which name the appellee asked that she be notified of this proceeding, as well as by her lawful name of Carrie Spriggs, the two names representing one and the same serson; that Aaron W. Pence was made a defendant, that he might be notified of the proceeding and answer thereto, if he had any other interest therein than that represented by his guardian, the appellee; that Carrie Spriggs, well knowing the feebleness and weakness of Aaron W. Pence's mind, influenced and persuaded him to enter into such pretended marriage relation with her, without the knowledge or consent of his guardian. Wherefore, etc.

To this complaiet, the appellant, Carrie Pence, demurred upon the following grounds: 1. That it did not state facts sufficient to constitute a cause of action; and, 2. That the appellee had not the legal capacity to sue.

It is clear, we think, that the second cause of demurrer does not present for decision the question which appellant's counsel manifestly sought to present thereby, namely: Whether or not the appellee, as the guardian of a husband of unsound mind, may maintain an action in his own name to obtain a decree annulling and setting aside the marriage of such husband? It has often been decided by this court, that a demurrer to a complaint assigning as cause, "that the plaintiff has not legal capacity to sue," has reference only to some legal disability of the plaintiff, such as infancy, idiocy or coverture, and not to the fact that the complaint fails to show a right of action in the plaintiff. Dale v. Thomas, 67 Ind. 570; Dewey v. State, ex rel., 91 Ind. 173; Traylor v. Dykins, 91 Ind. 229. It was not shown by the complaint, in this...

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55 cases
  • Miller v. Jackson Tp.
    • United States
    • Indiana Supreme Court
    • 2 juillet 1912
    ...v. Jones, 112 Ind. 498, 14 N. E. 484;Sinker v. Floyd, 104 Ind. 291, 4 N. E. 10;Wilson v. Galey, 103 Ind. 257, 2 N. E. 736;Pence v. Aughe, 101 Ind. 317;Toner v. Wagner, 158 Ind. 447, 63 N. E. 859. Also by direct assignment of want of capacity of relators to sue. The position of appellants is......
  • Miller v. Jackson Township of Boone County
    • United States
    • Indiana Supreme Court
    • 2 juillet 1912
    ... ... 498, 14 N.E. 484; ... Sinker v. Floyd [1885], 104 Ind. 291, 4 ... N.E. 10; Wilson v. Galey [1885], 103 Ind ... 257, 2 N.E. 736; Pence v. Aughe [1885], 101 ... Ind. 317; Toner v. Wagner [1902], 158 Ind ... 447, 63 N.E. 859); [178 Ind. 529] also, by direct assignment ... of ... ...
  • Wiley v. Wiley
    • United States
    • Indiana Appellate Court
    • 13 mai 1919
    ...much more than a contract with respect to property. 18 R. C. L. 383 et seq.; Noel v. Ewing, 9 Ind. 37;McCabe v. Borge, 89 Ind. 225;Pence v. Aughe, 101 Ind. 317;Castor v. Davis, 120 Ind. 231, 22 N. E. 110. True, the Legislature has declared marriage to be a civil contract. Sec. 8357, Burns 1......
  • Gruender v. Frank
    • United States
    • Missouri Supreme Court
    • 31 mai 1916
    ...on Code Pleading (3 Ed.), secs. 407-8; Ward v. Petrie, 157 N.Y. 301, 51 N.E. 1002; McKenney v. Minahan, 119 Wis. 651, 97 N.W. 489; Pence v. Aughe, 101 Ind. 317; Brown, v. Critchell, 110 Ind. 31, 7 N.E. 888; Howell v. Iola Portland Cement Co., 86 Kan. 450, 121 P. 346; Littleton v. Burgess, 1......
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