State ex rel. Ensley v. Superior Court of Marion County

• Decision Date: 16 June 1959
• Docket Number: No. 29764,No. 1,R,1,29764
• Parties: STATE of Indiana, on the Relation of Jack R. ENSLEY and Beni Ensley, Relators, v. SUPERIOR COURT OF MARION COUNTY, Roomespondent.
• Court: Indiana Supreme Court

Page 115

159 N.E.2d 115

239 Ind. 583

STATE of Indiana, on the Relation of Jack R. ENSLEY and Beni

Ensley, Relators, v. SUPERIOR COURT OF MARION COUNTY, Room No. 1, Respondent.

No. 29764.

Supreme Court of Indiana.

June 16, 1959.

Frederick J. Capp, Robert A. Claycombe, Indianapolis, Claycombe & Claycombe, Indianapolis, of counsel, for relators.

Edwin K. Steers, Atty. Gen. of Indiana, Richard M. Givan, Deputy Atty. Gen., for respondent.

Edwin K. Steers, Wm. G. Davis, Karl J. Stipher, Earl Clay Ulen, Jr., Indianapolis, amici curiae.

ARTERBURN, Judge.

This is an original action asking for a writ of mandate. We denied the alternative writ.

This case has its origin in a condemnation suit filed on April 14, 1958, in the Superior Court of Marion County, Room No. 1, Cause No. C-33491. The State of Indiana in that action condemned for highway purposes a right of way in a 25 poot wide strip of land containing approximately 7/10 of an acre. The defendants therein were the relators, Jack R. Ensley and Beni Ensley, alleged owners of the land, the College Life Insurance Company, an alleged mortgagee, and Howard W. Fieber, alleged holder of a first refusal option agreement covering the condemned land and land adjoining the same. All parties were served with proper notice of the filing of the condemnation action. In due course appraisers were appointed by the court and their assessment of damages was made and filed. On May 28, 1958, both the State and the relators, Ensley and Ensley, filed exceptions to the appraisers' report.

On September 30, 1958--over four months after the ten-day period had expired within which exceptions to the appraisers' report could be filed under the statute--the relators filed a paper entitled 'Amended exceptions to appraisers' report'. In the 'amended exceptions' it was alleged that Howard W. Fieber, as holder of an option on said real estate, had no right or interest therein and his option contract was no longer in effect. Fieber was given no notice of the filing of the 'amended exceptions' contesting his title and interest in said property. On the same day the 'amended exceptions' were filed, the Superior Court entered a default judgment holding that the interest of Fieber was invalid and void. On October 14, upon motion filed by Fieber and served upon the relators, Ensley and Ensley, the Superior Court expunged the default judgment. The relators, Ensley and Ensley, thereafter sought a reinstatement of the alleged default judgment, which was denied by the court. As part of the relief in this original action, the relators ask that the trial court be directed to set aside and expunge the order which set aside and expunged the default judgment holding that Fieber had no interest in the real estate and his option was void.

The relators urge that 'The Court did not have the power or authority to set aside the default judgment obtained by Relators against Howard W. Fieber on September 30, 1958, the Court acted without its jurisdiction in so doing.' The relators claim that Howard W. Fieber was duly served with notice originally in the condemnation proceedings and that he is bound by all the adjudications that take place therein. As between the plaintiff and the State in the condemnation action on the one hand and Fieber, as a defendant therein, that is true. Nevertheless, it does not follow in a cross-action or claim between codefendants (in the same suit) in which the plaintiff has no interest, that the notice given by the plaintiff would bind a codefendant as to a claim by another codefendant against him, without notice of such claim which was not set up in the original complaint.

The respondent here claims that the default judgment entered against Fieber is a nullity and absolutely void because it lacks any notice to him or service of process upon him by the relators, Ensley and Ensley, and there are authorities to support this viewpoint.

The situation here in analogous to that where a suit is brought by a principal against two or more defendants upon a contract where a question of suretyship arises between them. Although the statute permits the issue between the codefendants to be determined in the same action, we have held that that issue does not concern the principal and that it is purely a contest between the defendants. Burns' 1946 Repl § 3-2503; Smith v. Muncie National Bank, 1867, 29 Ind. 158, 159; Callahan v. Mitchell, 1868, 29 Ind. 418; Beck v. O'Dell, 1923, 193 Ind. 386, 140 N.E. 527.

In Fletcher v. Holmes, 1865, 25 Ind. 458, 465, 466, we said:

'* * * In those courts, when a defendant sought relief against a co-defendant, as to matters not apparent upon the face of the original bill, he must file his cross-bill, alleging therein the matters upon which he relied for relief, making defendants thereto of such co-defendants and others as was proper, and process was necessary to bring them in. The filing of the cross-bill was regarded in some sence as the commencement of a new suit.'

In Joyce et al. Whitney et al., 1877, 57 Ind. 550, 557, we said in a similar case:

'* * * But it will not do to say, that, on a summons issued and served in an action on the contract, upon the filing of a complaint by one of the defendants as surety in such contract, the other defendants can at once be defaulted as to such complaint, without any notice whatever thereof. This point was settled, by this Court, in the case of Fletcher v. Holmes, 25 Ind. 458. And, upon the point now under consideration, the doctrine of the case cited, it seems to us, ought never to have been doubted nor questioned by this court, in any case, where the matter set up in the cross-complaint was not apparent in the original complaint.' (Our italics.)

The validity of the option contract held by Fieber was not in issue under the original complaint filed. It was first attempted to be put in issue by the filing of 'amended exceptions' to the appraisers' repot. It was an issue solely between the Ensleys and Fieber. He had no notice of this new issue raised in effect by an attempted cross-action between two codefendants.

The principles enumerated in the early cases cited above have since been followed by this court, holding that a judgment taken by default is void, if it is an attempted adjudication of a claim outside the issues raised by the complaint and one between codefendants where there was no service of process nor an appearance to the cross-complaint. Voss v. Lewis, 1890, 126 Ind. 155, 25 N.E. 892; Bartmess v. Holliday, 1901, 27 Ind.App. 554, 61 N.E. 750; Restatement of the Law, (1942), Judgments, § 5, comment g., and § 8, comment c.

A further weakness in relators' position before us is that the record shows that the 'amended exceptions', which first raised the issue as to the validity of Fieber's option contract with the Ensleys, was not filed within the ten days' time fixed by the statute for filing exceptions. On the other hand, the original exceptions to the appraisers' report which were...