State ex rel. Roth v. Dickey

• Decision Date: 26 June 1947
• Docket Number: 28317.
• Citation: 73 N.E.2d 765,225 Ind. 279
• Parties: STATE ex rel. ROTH v. DICKEY, Judge.
• Court: Indiana Supreme Court

73 N.E.2d 765

225 Ind. 279

STATE ex rel. ROTH v. DICKEY, Judge.

No. 28317.

Supreme Court of Indiana

June 26, 1947

George W. Andrews, of Marion, for relator.

Campbell Gemmill, Browne & Ewer, of Marion, for respondent.

O'MALLEY Chief Justice.

The relator filed an action in the Grant Superior Court, service of summons was had and answers were filed on behalf of the defendant. The action was filed to set aside a judgment obtained by the defendant in a prior action. After the issues were closed the relator filed an affidavit requesting a change of judge. The respondent denied the requested change of judge on the ground that the proceeding was commenced under § 2-1068, Burns' 1933.

An examination of the complaint discloses that it was filed under the number of the former action in which a judgment was obtained. The complaint alleges that the plaintiff in such former action knew that relator was a non-resident of Grant County at the time of the filing of the former action and that despite such knowledge she caused summons to be served at a place of residence as and for his last and usual place of residence. It further alleges that she fraudulently caused the return of such service to be presented to the court and thereby secured judgment while this relator was in the armed service. The prayer was to set aside the judgment as null and void.

Ostensibly this action was not a request for a review. It has some elements that point toward the statute referred to above, § 2-1068, Burns' 1933, which provides a summary proceeding in which no change of judge is permissible. Under the authorities it would appear that the allegations and the demand place the complaint in that class of actions which request relief from a void judgment, one rendered without jurisdiction of the person of the defendant. It seems to us that such allegations and demand are sufficient to sustain it as an independent action charging fraud in the service of summons, the return of the sheriff, and in the procurement of the judgment.

It has been held that where there is a charge of falsely procuring a return and fraudulently creating the appearance of jurisdiction of the person, when in fact there was no real service and the party supposed to be served was a non-resident of this state, such facts were considered sufficient to show that there was no jurisdiction of the person. Cavanaugh et al. v. Smith, 1882, 84 Ind 380.

In the above case it was determined that a judgment may be attacked for fraud in an independent action under the rules established by equity. See Frankel v. Garrard, 1903, 160 Ind. 209, 66 N.E. 687; Vivian Collieries Co. v. Cahall, 1916, 184 Ind. 473, 110 N.E. 672.

In acting on...