Stayner v. Bruce
| Decision Date | 20 February 1953 |
| Docket Number | No. 18361,18361 |
| Citation | 110 N.E.2d 511,123 Ind.App. 467 |
| Parties | STAYNER v. BRUCE et al. |
| Court | Indiana Appellate Court |
Edgar W. Atkinson and Hugh G. Sanders, Auburn, for appellant.
Alphonso C. Wood and Donald L. Trennepohl, Angola, for appellee.
The sole task with which this appeal confronts us is to determine whether the complaint herein is sufficient to override a demurrer for want of facts. The trial court concluded that it is not and so ruled after which the appellant, the plaintiff below, refused to plead over and the judgment is that she take nothing.
The complaint pleads the following facts in substance: Amos W. Beach, a resident of Steuben County, Indiana, died intestate in early September, 1944, and Frank S. Rowley was appointed administrator of his estate on September 12, 1944, and on said day gave due notice thereof by publication in the Steuben Republican, a newspaper of general circulation published weekly in said county. On May 18, 1949, the plaintiff filed a claim against said estate in the office of the clerk of the Steuben Circuit Court which was disallowed by said administrator and transferred to the trial docket of said court. Subsequently the cause was venued to the DeKalb Circuit Court where the regular judge disqualified himself and one Robert Y. Keegan was chosen and appointed a special judge in the matter. The case was tried to a jury which returned a verdict for the appellant in the sum of $848.75. The judgment, entered on November 14, 1951, is as follows:
'It is therefore considered, adjudged and decreed by the court that the claimant Audrey L. Stayner shall recover of and from the defendant estate of Amos W. Beach, Frank S. Rowley administrator, the sum of $848.75 and that the defendant shall pay the costs of this action herein made and taxed at $_____.'
Said judgment remained as entered until April 3, 1952, when Rowley, as administrator of the Beach estate, appeared in the DeKalb Circuit Court and filed a motion to retax the costs on the ground that they had been assessed against the estate instead of against the claimant as required by pertinent statute. That on said day Robert Y. Keegan, the special judge before whom the case was tried and by whom the court acted in rendering the above judgment, appeared in the DeKalb Circuit Court, assumed jurisdiction, sustained the motion and entered an order assessing the costs of the litigation against the plaintiff. That at the time of so acting the term of court in which the original judgment was entered had long since expired, no motion for a new trial had been filed nor had an appeal been taken from said judgment. That said Keegan was neither the regular judge of the DeKalb Circuit Court nor its judge pro tempore nor had he been vested with any authority as special judge in the matter except that which attended his appointment ab initio.
The complaint further alleges that the order of April 3, 1952, assessing the costs against the plaintiff and entered by a 'pretended special judge,' if permitted to stand, will constitute a cloud upon the plaintiff's title to real estate against which she has no adequate remedy at law and she therefore prays the court that said order be expunged from the record, cancelled and held for naught and that the defendant Ralph W. Bruce, as clerk of the DeKalb Circuit Court, be enjoined from certifying such costs to the clerk of the Steuben Circuit Court as a charge against her and that the defendants Frank S. Rowley, administrator of the Amos Beach estate, and Eugene Maloy, as clerk of the Steuben Circuit Court, be enjoined from taking any steps looking to the collection of said costs from her.
It will be noted that as originally filed this complaint made Frank S. Rowley, administrator of the estate of Amos W. Beach, a party defendant and, as we construe it, it constituted a direct attack on the order of April 3, 1952, retaxing costs, and sought injunctive relief from its implementation until such order could be held void and expunged of record. Frankel v. Garrard, 1903, 160 Ind. 209, 66 N.E. 687. If said order were to be so expunged and declared void it is obvious that the Beach estate, through its proper representative, was a necessary party to the suit but, for reasons undisclosed by the record, the appellant dismissed her complaint against the estate, and left the court powerless to disturb the controversial order. The complaint then becomes one in which the appellant merely sought to enjoin two court officers from taking any official...
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