State ex rel. Hurd v. Davis

• Decision Date: 23 February 1949
• Docket Number: 28517.
• Citation: 84 N.E.2d 181,227 Ind. 93
• Parties: STATE ex rel. HURD v. DAVIS, Judge.
• Court: Indiana Supreme Court

84 N.E.2d 181

227 Ind. 93

STATE ex rel. HURD v. DAVIS, Judge.

No. 28517.

Supreme Court of Indiana

February 23, 1949

Davis & Davis, of Muncie, for relator.

Joseph H. Davis, pro se, for respondent.

GILKISON Judge.

This action is in the nature of a continuation of State ex rel. Hurd v. Davis, Judge, No. 28457, Ind.Sup. 1948, 82 N.E.2d 82, decided September 30, 1948. The opinion in that case should be read with this opinion. In this original action relator among other things charges that on June 2 1948, certain defendants named, filed a motion to dismiss relator's petition in which he asked to be declared a child, heir and distributee under the will in the estate of E. Arthur Ball, deceased, then and now being administered in the court of respondent. Omitting caption and signature of attorneys, the motion is as follows:

'Merchants Trust Company, Edmund F. Ball and Frances D. Ball, Executors of the Will of E. Arthur Ball, deceased, move the Court for an order rejecting, dismissing and striking from the files, the amended petition of Robert Carlton Hurd filed herein on the 1st day of May, 1948, for the following reasons:

'1. Virginia Hurd is not a competent and responsible person to act as next friend for the petitioner.

'2. Said decedent left a will which has been duly admitted to probate and record in this Court and in which the petitioner is not mentioned by name or otherwise.

'3. Said petition presents facts and issues which properly may be presented and tried only in an adversary proceeding in the nature of an action for a declaratory judgment.

'4. Said petition has been filed as a probate proceeding. The issues involved are such as can be presented and tried only in a civil cause. The Circuit Court sitting in probate has no jurisdiction.'

After the mandate was issued in cause No. 28457, respondent, on November 13, 1948, ordered summons issued for the resident defendants and publication of notice to the non-resident defendants returnable January 22, 1949. The summons was duly issued and served and the non-resident notice was issued and published. The impounded papers were ordered released. It is further averred that none of the defendants named in the summons, or in the non-resident notice have appeared in the matter voluntarily or otherwise.

It is then alleged that on December 31, 1948, the respondent judge without notice to relator or his attorneys, without any hearing whatever, entered a judgment in the cause dismissing relator's amended petition with costs against petitioner. That relator and his attorneys had no notice or knowledge of the action so taken by respondent judge until three days thereafter. Omitting the caption the judgment rendered is as follows:

'With reference to the motion of the defendants Merchants Trust Company, Edmund F. Ball, and Frances D. Ball, as Executors of the last Will and Testament of E. Arthur Ball, deceased, for an order rejecting, dismissing and striking from the files the petition and amended petition of Robert Carlton Hurd filed in this cause, which motion was heretofore submitted to the court, the court finds that E. Arthur Ball died testate on April 15, 1947, and that his will was duly admitted to probate in this cause, which will is a part of the record files, papers and pleadings of this cause and reads as follows, to-wit: (H. I.). The court further finds that said will filed in this cause does not contain the name of the petitioner Robert Carlton Hurd therein, nor does it make any reference to such person, nor does it include such person within the word children as used in said will. The court further finds that the validity of the will above set out and filed herein has not been attacked or questioned, and that all of the property of the decedent is covered by specific, general and residuary provisions of decedent's will filed herein, and that as Robert Carlton Hurd was not mentioned in said will as a devisee or legatee he could take nothing under his petition and amended petition herein, and that a finding in this cause that said Robert Carlton Hurd 'be adjudged to be the son of E. Arthur Ball, deceased, and that he be adjudged an heir of said decedent and entitled to inherit as such son and heir' (to quote from petitioner's petition herein), as prayed for in the said Hurd's amended petition, would serve no useful purpose whatsoever; that it would not aid Hurd in any particular and that a trial of such an issue would be the trial of a moot matter and also the trial of useless and pointless litigation; that such a finding would not give this court authority in this cause to declare said Hurd an heir of decedent, (Craig v. Kimsey, , 18 N.E.2d 895) and if it did so it would still lack authority to write Hurd's name into the will of said decedent.

'The court further finds that the defendant Merchants Trust Company, Edmund F. Ball and Frances D. Ball filed a Schedule of Inheritance Tax in this cause, which is one of the pleadings and a part of the papers and files of this cause, which Schedule of Inheritance Tax is in the words and figures following, to-wit: (H.I.); that also filed in this cause, as a part of the pleadings and papers herein is an Application for Letters Testamentary, which Application is in the words and figures following to-wit: (H.I.); that said Schedule of Inheritance Tax, said Application for Letters Testamentary and other pleadings also filed herein in this cause disclose that decedent left surviving him as his sole and only heirs at law, his widow, Frances D. Ball, and three legitimate children, namely, the defendants, Barbara Ball Foley, Dorothy Ann Ball Friestedt, and George A. Ball II, and the court further finds that the legitimacy of said children is not questioned in this cause or in any manner or cause whatsoever, and that under the laws of this state the said Hurd, who claims in his petition and amended petition filed herein to be the illegitimate son of decedent, cannot inherit any of decedent's property, as there are three living legitimate children of decedent.

'The court further finds that Virginia Hurd, the original next friend herein, is the mother of the petitioner Robert Carlton Hurd, and that at the time said Robert Carlton Hurd was conceived and born, his mother Virginia Hurd was married to and living with one Ralph Hurd as wife and husband and that said Robert Carlton Hurd was born in the wedlock of Virginia Hurd and Ralph Hurd; that neither Virginia Hurd nor Ralph Hurd are competent to testify or say that Robert Carlton Hurd is not the son of Ralph Hurd, and that to prove beyond all reasonable doubt that said Ralph Hurd is not the father of Robert Carlton Hurd, as is required by law, (Sayles v. Sayles, , 80 N.E.2d 21) would in no way assist Robert Carlton Hurd to take under the will of said decedent under his petition filed in this cause.

'It is therefore declared, ordered, anjudged and decreed by the court that the motion of defendants Merchants Trust Company, Edmund F. Ball, and Frances D. Ball to dismiss the petition and amended petition of Robert Carlton Hurd be sustained, and said motion is now sustained and said petition and amended petitions are dismissed with costs assessed against the petitioner, to which petitioner excepts and objects. Petitioner is granted an appeal to the Appellate Court of Indiana upon filing his appeal bond in the sum of $100, and 90 days is granted petitioner in which to file all Bills of Exceptions. Exceptions by defendants.'

In a second paragraph of response, respondent, among other things, admits that he entered the judgment dismissing relator's petition and against relator for costs, asserts that he was within his rights in so doing, and states that he is without interest in the matter; that he is not conscious of any prejudice against relator; that he was not actuated by any fraud or collusion in entering the judgment; and that he resents suggestions of misconduct which he says have been made by relator's counsel.

The facts in this proceeding present a case of involuntary non-suit or dismissal of relator's action. The procedural matter is covered by our laws. Section 2-901, Burns 1946 Repl., among other things provides as follows:

'An action may be dismissed without prejudice----

'First. By the plaintiff, before the jury retires; or, when the trial is by the court, at any time before the finding of the court is announced.

'Second. By the court where the plaintiff fails to appear on trial.

'Third. By the court, on the refusal to make the necessary parties, after having been ordered by the court.

'Fourth. By the court, on the application of some of the defendants, where there are other whom the plaintiff fails to prosecute with diligence.

'Fifth. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action.

'In all other cases, upon the trial, the decision must be upon the merits.'

Prior to the enactment of § 2-901, supra, at the Special Session of the Legislature in 1881, this court had held that a Circuit Court is without power to nonsuit a plaintiff without his consent, Booe v. Davis, 1839, 5 Blackf. 115, 33 Am.Dec. 457 and so far as we know there has been no change in the rule there announced. Yelton v. Plantz, Ind.Sup.1948, 77 N.E.2d 895. It is apparent that in rendering the judgment of dismissal respondent court did not act by virtue of authority granted by either clause of § 2-901, supra. At common law a plaintiff may not be...