Rosa v. Prather

• Decision Date: 08 October 1885
• Citation: 103 Ind. 191,2 N.E. 575
• Parties: Rosa and other v. Prather.
• Court: Indiana Supreme Court

103 Ind. 191

2 N.E. 575

Rosa and other

v.Prather.¹

Supreme Court of Indiana.

Filed October 8, 1885.

Appeal from the Warren circuit court.

McCabe & McCabe, for appellants.

Niblack, J.

On the thirtieth day of March, 1880, Henry Prather recovered a judgment in the Warren circuit court against Mary R. Rosa, and her husband, Charles B. Rosa, and Phebe Wiles, and her husband, Jacob Wiles, for possession of certain described tracts of land in Warren county, and quieting his title to the same lands upon the ground that the deeds upon which the said Mary and Phebe, respectively, based some claim to the lands were fraudulent and void as against him, the said Prather. In March, 1884, Mary R. Rosa, in conjunction with her husband, Charles E. Rosa, commenced this proceeding against Prather to review the judgment recovered by him as above. The complaint was in two paragraphs. The first charged that the Warren circuit court had no jurisdiction over the said Mary, because she was at the time a minor under the age of 21 years; that said court had no jurisdiction over the subject-matter of the action; that the complaint did not state facts sufficient to constitute a cause of action; and that the judgment was void because of uncertainty in the description of the lands which it attempted to describe. The second paragraph charged that when the original complaint was filed it contained but one paragraph, which was only for the recovery of the possession of the land to which it had reference, and that some time after the action was commenced both Prather and his attorney falsely assured Mrs. Rosa and her husband that the object of the action was only to recover the possession of the lands in suit; that, relying upon such assurance, Mrs. Rosa and her husband made no defense to the action, and suffered default to be taken against them; that after giving such assurance, and notwithstanding the same, Prather, before the cause came on to a trial, filed a second paragraph to his said original complaint, averring that certain deeds under which Mrs. Rosa and Mrs. Wiles respectively claimed to have some interest in the lands sought to be recovered were fraudulent and void as against him, and demanding that his title be quieted against any claim under those deeds; that, in consequence of the false assurance so given, as above stated, by both Prather and his attorney, neither Mrs. Rosa nor her husband had any notice of the filing of said second paragraph of complaint in the original action, and never received any actual notice of the filing of the same until at and about the time of commencing this proceeding; that when process was served upon them, and ever since, both Mrs. Rosa and her husband were non-residents of this state; being, in fact, residents of Vermillion county, in the state of Illinois.

A demurrer was sustained to this second paragraph of the complaint for a review of the proceedings in the original action, and Prather answered- First, in general denial; second, that the judgment complained of was not rendered within one year before the time of the commencement of this proceeding; third, that said judgment was not rendered within three years before this proceeding was commenced. To the second and third paragraphs of this answer Mrs. Rosa and her husband replied- First, that Mrs. Rosa was, at the time of the rendition of the judgment sought to be reviewed, and had ever since continued to be, a married woman; second, that at the time of the rendition of such judgment Mrs. Rosa and her husband were, and continuously ever since had been, non-residents of this state, but had and still resided in the state of Illinois. Demurrers were severally sustained to both paragraphs of the reply, and, the plaintiffs in this proceeding declining to plead further, final judgment went against them upon demurrer.

Complaint is made in this court of the decision of the circuit court sustaining a demurrer to the second paragraph of the complaint; also of the decisions sustaining demurrers to both paragraphs of the reply. No formal argument has been submitted by counsel for the appellants in support of the sufficiency of the second paragraph of the complaint, and we have no brief from the appellee. It may not be amiss, nevertheless, to remark that we can recall nothing which would...