Sicanoff v. Miller

• Citation: 131 Ind.App. 535,167 N.E.2d 481
• Decision Date: 24 May 1960
• Docket Number: No. 18975,No. 2,18975,2
• Parties: Bert SICANOFF, Appellant, v. Daniel C. MILLER and Ann Miller, Husband and Wife, Dudley F. Taylor, Frederic W. Taylor, Eleanor Taylor Joss, Dan W. Smith, Sheriff of Marion County, Indiana, Appellees
• Court: Indiana Appellate Court

Page 481

167 N.E.2d 481

131 Ind.App. 535

Bert SICANOFF, Appellant, v. Daniel C. MILLER and Ann Miller, Husband and Wife, Dudley F Taylor, Frederic W. Taylor, Eleanor Taylor Joss Dan W. Smith, Sheriff of Marion County Indiana, Appellees.

No. 18975.

Appellate Court of Indiana, Division No. 2.

May 24, 1960.

Rehearing Denied July 1, 1960.

Bernard Landman, Jr., Charles B. Feibleman, Indianapolis, for appellant. Bamberger & Feibleman, Indianapolis, of counsel.

Thomas E. Garvin, C. Ben Dutton, James Stewart, Indianapolis, for appellees.

BIERLY, Chief Justice.

The Superior Court of Marion County entered a default judgment on a foreclosure of a mortgage on October 22, 1953, against Deniel C. Miller and Ann Miller, his wife, appellees to this action. Subsequently, on May 17, 1954, the property was sold at sheriff's sale to the appellant, Bert Sicanoff. Appellant, who was a stranger to the original action, paid the sum of $42,500.00 to the Sheriff of Marion County, that being the amount of the purchase price.

The present action was brought praying a decree, in equity, and alleging lack of service of notice of summons or process, challenging the default judgment and the sheriff's deed, by having the former voided and vacated, and the latter declared void and canceled; and that appellant be permanently enjoined from asserting or claiming any ownership or right of dominion, control or management over the real estate owned by the appellees, Daniel C. Miller and Ann Miller, and over the tenants therein.

This action was tried by the court, upon a change of venue, in the Hancock Circuit Court. Consistent judgment was entered for the appellees, Daniel C. Miller and Ann Miller, voiding the default judgment, declaring the sheriff's deed void and canceled, and permanently enjoining Bert Sicanoff, appellant, from acts as prayed for in said action.

The paramount question which must be considered and decided on this appeal, concerns the validity of the service of process in the original foreclosure action.

The appellees contend that they were never legally served with summons or process in the original or foreclosure action and that the judgment, therefore, was null and void. If this contention can be maintained under the circumstances presented by the evidence, the trial court in the foreclosure action failed to have jurisdiction of the appellees as provided by Burns' 1946 Replacement § 2-803. The consequence of the failure to acquire jurisdiction over the parties to an action was ably presented in Calumet Teaming & Trucking Co. v. Young, 1941, 218 Ind. 468, 33 N.E.2d 109, 110, 583, in that the court said:

'* * * Where a judgment is rendered without jurisdiction of the subject matter or without jurisdiction of the person, the judgment is void and not merely erroneous, and it can be attacked directly or collaterally at any time. * * *.' (Our emphasis.)

In the case at bar, the returns of the sheriff which were dated on the 17th day of April, 1953, purport to require the appellees to appear before the Superior Court of Marion County on May 1, 1953, to answer the complaint for a foreclosure in Cause No. B-97603. In that cause said judgment of foreclosure was entered on the 22nd day of October, 1953, and the sale of the real estate, ordered by said decree, was held by the sheriff on May 21, 1954.

The present action at bar was filed on the 8th day of June, 1954. The Sheriff of Marion County petitioned the Superior Court of Marion County for authorization to amend his returns, heretofore dated April 17, 1953, in the foreclosure suit, and after notice to appellees, followed by hearing held thereon, said court authorized the sheriff to amend the returns, and the same were amended on the 8th day of November, 1954.

The original returns carried the address of 2608 1/2 Central Avenue, Indianapolis; the original returns were amended by crossing out the above address and inserting in lieu thereof the address of 6107 Central Avenue in said city.

Appellees' theory, as portrayed in their complaint, is that, in fact, they were never legally served with the summons at 6107 Central Avenue; that the returns of the sheriff were a constructive fraud upon appellees, and hence void and of no effect.

In turn, the appellant contended that the sheriff's amended returns constituted a part of the original action in No. B-97603, upon which the judgment of foreclosure was rendered, and, as such, it became and is res judicata as to the place where the summonses were served. On the other hand, appellees earnestly plead that the aforesaid amended returns constitute nothing more than a mere interlocutory order lacking the capacity as res judicata. A sheriff, by leave of the court, may amend his returns at any time. Jackson v. Ohio & Mississippi Railroad Co., 1860, 15 Ind. 192; Dwiggins et al. v. Cook et al., 1880, 71 Ind. 579. In the latter case on page 580, the court said:

'The authorities are strongly in favor of the right to amend a return after the expiration of the official term. It is said in Bacon's Abridgment that, 'If the return of the old sheriff happens to be erroneous, and a new sheriff be chosen, yet the court may cause the old sheriff or his under sheriff, clerk or deputy to amend the same.' 7 Bac.Abr. 195. Adams v. Robinson, 1 Pick. 461; Childs v. Barrows, 9 Met. 413; Blaisdell v. Steamboat Wm. Pope, 19 Mo. 157.' Turner et ux. v. First National Bank of Madison, 1881, 78 Ind. 19; Wilcox v. Moudy et al., 1883, 89 Ind. 232.

The most important factor in a sheriff's amended return, as it concerns the case at bar, is that it dates back to the original action as to the time of the original service. Dwiggins et al. v. Cook et al., supra. Thence, the sheriff's return has the same force and effect as any part of the original proceedings.

The appellees rely upon the case of State of New Jersey v. Shirk, 1920, 75 Ind.App. 275, 127 N.E. 861, and the other cited cases in support of the judgment of the trial court from which this appeal was taken. The case of the State of New Jersey v. Shirk, supra, speaks of what amounts to constructive fraud, and the decision appears to be controlled by a factor present in the other cases. In those cases where the judgments were vacated for lack of service and no actual fraud was present, the sheriff was mistaken as to a fact not presumptively within his personal knowledge. But, in the case at bar, the amended return discloses that a copy of the summons was left at 6107 Central Avenue, Indianapolis, which is admitted by the appellees to be their residence at that time. Hence the officer was not mistaken as to the last and usual place of residence of the appellees nor was he mistaken as to any fact not presumptively within his personal knowledge.

While it is true that the returns of a sheriff may be attacked upon the ground of actual fraud or collusion, Meyer v. Wilson, 1906, 166 Ind. 651, 76 N.E. 748, appellees present no contention of actual fraud or collusion, nor does such fact appear from the evidence. A sheriff's return can be attacked upon the ground that it fails to speak the truth of a fact not presumptively within the personal knowledge of the sheriff. State of New Jersey v. Shirk, supra; Gaddis v. Barnes, Jr., et al., 1953, 123 Ind.App. 624, 112 N.E.2d 881; Roth v. Bonar, 1951, 122 Ind.App. 174, 101 N.E.2d 828; Donnelley v. Thorne, 1943, 114 Ind.App. 468, 51 N.E.2d 873.

But a sheriff's return is conclusive as stated upon its face, as to any fact which the sheriff can be presumed to know, Hume et al. v. Conduitt et al., 1881, 76 Ind. 598; Cully v. Shirk et al., 1891, 131 Ind. 76, 30 N.E. 882; Krug v. Davis, 1882, 85 Ind. 309; Smith v. Noe, 1868, 30 Ind. 117; Flanagan, Wiltrout and Hamilton, Indiana Pleading and Procedure § 88, p. 149.

In the case at bar, the address where the summons was left, as stated upon the amended return of the sheriff, is a fact of which the process server can have positive knowledge. The rule, as previously stated in the foregoing cases, makes a return under such circumstances conclusive. This rule is absolute and is binding upon the court.

The judgment of the Superior Court of Marion County disclosed no impediment of any illegal proceedings on its face. The said Court possessed proper jurisdiction of both the subject matter and the party appellees. According to the evidence appellee, Daniel C. Miller, attended the sheriff's sale, and by his own testimony attended the sale for the purpose of bidding on the property through an adult person whom he brought to the sale for that purpose. No disclosure according to said record was made by the appellees to the sheriff or to the subsequent purchaser that any question to the title of real estate to be sold was involved. But the evidence did show that a person accompanied Daniel C. Miller, appellee, to said sale and had funds with him for the purpose of bidding on said real estate but which were grossly insufficient with which to successfully purchase said real estate. It has been held in Savage v. Foster (1723), 9 Mod. 35, 88 Eng.Report 299, 12 Eng.Rul.Cas. 309 that when land is to be sold publicly a party claiming an interest and knowing of such sale is required to assert his right by notice to the purchaser, but having not done so, he is further stopped from asserting a claim to void said sale. To the same effect the case of Wendell v. Van Rensselaer, 1815, 1 Johns Ch., N.Y., 343, in 50 A.L.R. 714, in setting forth the obligations of a person present at a judicial sale and his failure to speak thereby resulting in an estoppel, it is stated:

'* * * the existence of a duty to disclose an interest in real property is prima facie to be inferred, whenever it appears that the holder of the interest was physically present at the time when the transaction which affected his rights was being consummated. Some precedents for a different view are to be found in the reports. But they are so clearly opposed to the weight of authority...