Rupert v. Martz

• Decision Date: 23 October 1888
• Citation: 116 Ind. 72,18 N.E. 381
• Parties: Rupert v. Martz.
• Court: Indiana Supreme Court

116 Ind. 72

18 N.E. 381

Rupert

v.Martz.

Supreme Court of Indiana.

October 23, 1888.

Appeal from circuit court, Huntington county; M. Winfield, Judge.

Ibach & Ibach, for appellant. Branyan, Spencer, Kaufman & Branyan, for appellee.

Zollars, J.

The purpose of this action by appellant is to avoid a decree quieting the title to the land described in the complaint in her father. So far as it is necessary in this connection to refer to the complaint, the following brief and general summary is sufficient: Appellant's mother died intestate in 1864. At the time of her death the fee to the land in dispute here was in her. In 1871, when appellant was a minor, her father, Benjamin Rupert, commenced an action against her to have the title to the land quieted in him. She was the sole defendant, and, having been duly served with process, a guardian ad litem was appointed for her by the court. The guardian ad litem filed an answer, and, the cause having been submitted to the court, a decree was rendered on the 5th day of December, 1871, quieting the title to the land in the father. Subsequent to the decree the father conveyed all the title he had to the land to Cornelius Martz, appellee herein, and the defendant below; and subsequent to that conveyance, and before the commencement of this action, the father died. In their arguments here, counsel for appellant seem to assume that the complaint may be regarded both as an application to be relieved from the decree on account of surprise, inadvertence, and excusable neglect on the part of appellant, and as an action for a review of the proceedings, and decree quieting the title in the father. One of the errors assigned here is that the court below erred in overruling a demurrer to appellee's answer. In that answer it is averred, among other things, that this action was not commenced by appellant within one year after she attained the age of twenty-one years, and that she at no time had been under any other legal disability. Section 396, Rev. St. 1881, provides that the trial courts shall relieve parties from judgments taken against them through their mistake, inadvertence, surprise, or excusable neglect, on complaint or motion filed within two years. It is not necessary to inquire here whether or not there is any statute which extends the time beyond the disability of infancy in which to make an application to be relieved from a judgment under the above statute. It is sufficient to say that, whether the answer is good or bad, it is sufficient to meet the complaint, so far as it may, in any sense, be regarded as an application to be relieved from the decree on account of surprise, etc. A bad answer is sufficient for a bad complaint. To make a complaint or application good under the above statute it must show that the applicant has a valid or meritorious defense to the original action, and what that defense is. Yancy v. Teter, 39 Ind. 305;Lee v. Basey, 85 Ind. 543;Wills v. Browning, 96 Ind. 149;Woods v. Brown, 93 Ind. 164. In the complaint in this case it is not shown, nor attempted to be shown, that appellant had or has any valid or meritorious defense to the action by her father.

Without saying more in relation to the argument of counsel for appellant, which seems to treat the complaint as an application to set aside the decree on account of surprise, etc., we turn to the other branch of the argument, which treats the case as an action for a review of the proceedings and decree. In disposing of this branch of the case we decide nothing as to the sufficiency of the complaint, but confine ourselves to the questions raised by the answer. As before stated, the decree was rendered in 1871, when appellant was a minor. The statute then in force provided that any party to a judgment might file in the court where such judgment was rendered a complaint for a review of the proceedings and judgment, at any time within three years next after the rendition thereof. And that any person under legal disabilities might file such complaint at any time within three years after the disability was removed. 2 Rev. St. 1876, p. 247, § 586. This action was commenced in May, 1885. It is averred in the answer that appellant attained the age of twenty-one years two years prior to that time, and that her action was therefore not commenced within one year after becoming twenty-one years of age. The act which went into effect on the 19th day of September, 1881, superseded the act above mentioned. In a case like this, where the review is sought upon the ground of error of law appearing in the proceedings and judgment, the latter act provides that the complaint for review must be filed within one year from the rendition of the judgment, and that any persons under legal disabilities may file such complaint at any time within one year after the disability is removed. Rev. St. 1881, §§ 615, 616. Had the prior act remained in force, appellant would have had three years after attaining the age of twenty-one years in which to commence this action, or until May, 1886. Under the latter act the time within which persons may commence such an action after attaining the age of twenty-one years is cut down to one year, and, as applied to appellant's case, expired one year before...