Thompson v. McCorkle

• Decision Date: 26 September 1893
• Parties: THOMPSON v. McCORKLE.
• Court: Indiana Supreme Court

136 Ind. 484

34 N.E. 813

THOMPSON

v.McCORKLE.¹

Supreme Court of Indiana.

Sept. 26, 1893.

Appeal from circuit court, Jasper county; P. H. Ward, Judge

Action by Maria McCorkle against Alfred Thompson to vacate a judgment, and for partition of land. Judgment for plaintiff. Defendant appeals. Reversed.

S. P. Thompson, for appellant. Adams & Carter, for appellee.

DAILEY, J.

The appellee, as widow of John McCorkle, who died at Shelbyville, Ind., May 20, 1880, on the 13th day of January, 1890, brought an action in the Jasper circuit court against appellant, alleging, in substance, that her husband, prior to August 23, 1859, owned the N. 1/2 of the S. E. 1/4 of section 21, township 31 N., range 7 W., containing 89 acres, in said county; that plaintiff is the owner of the undivided one-third of said real estate, and defendant is owner of the undivided two-thirds part thereof; that the same is susceptible of equitable partition between the owners according to their respective rights and interests; that defendant, with the wrongful intent to cheat and defraud plaintiff, on December 3, 1883, filed in the Jasper circuit court a complaint in two paragraphs, in which he falsely alleged that he was the owner in fee of said tract and certain other lands therein described; that, when the same was filed, he knew he was the owner in fee of but two-thirds, and that plaintiff was the owner in fee of the one-third part thereof; that plaintiff was at the time of filing said complaint, and ever since has continued to be, such owner; that said Thompson in his complaint falsely alleged that “the defendants claim some interest in said land, the nature of which is unknown to plaintiff, but plaintiff says that said claim casts a cloud upon his title to said real estate;” that in pursuance of his fraudulent design, and to carry the same into effect, he caused and procured an affidavit to be made by one Austin averring that said action was brought to quiet title to certain land in said county; that defendants were necessary parties thereto, and were nonresidents of the state of Indiana; that on said false affidavit, and pursuant to his fraudulent design, and to carry the same into effect, he caused and procured the clerk of the Jasper circuit court to issue and publish in the Rensselaer Republican, a certain weekly newspaper of general circulation, printed and published in said county, a notice to certain parties, among whom were John McCorkle and -- McCorkle, his wife, notifying them that plaintiff had filed his complaint in said court, to quiet his title to, and foreclose a tax lien on, said premises, and that the same would stand for trial on Saturday, January 26, 1884; that afterwards he procured the publisher of said paper to make affidavit of the proper publication of said notice, and caused the same to be filed in the office of the clerk of said court as proof of the pendency of said cause and of the subject-matter thereof, and procured the clerk to indorse the filing thereon; that no other notice was ever issued or given to the defendants, or either of them, in said cause; that no summons was ever issued in said cause, and no notice of the pendency of said suit was ever served upon or given to the plaintiff herein; that she did not, either by person or attorney, enter her appearance to said suit; that she did not waive the service of process upon her in said suit, and did not acknowledge process or the service of process upon her therein, and had no notice or knowledge that such suit had ever been brought or judgment taken in the same until November 6, 1889, and there was no attempt to bring her into court in said suit, except by publication as stated; that afterwards said Thompson, pursuant to his fraudulent design, and to carry out the same, presented to the court said notice and said affidavit of publication as proof of notice to defendants in said suit, and moved the court thereupon to default the defendants in said cause for want of appearance and answer, which motion was sustained, and said defendants were called in the names as set out in said notice, and as such defaulted; that thereupon said Thompson moved the court for judgment against defendants upon such default, which motion was sustained, and judgment was then rendered quieting the title to, and foreclosing his tax lien on, said real estate, and adjudging him to be the owner in fee thereof; that the court also found the notice sufficient to give the court jurisdiction of both the subject-matter and the parties defendant to said suit. Plaintiff further avers that John McCorkle died intestate, at Shelby county, Ind., on May 20, 1880, and that she has resided continuously in said Shelby county for 70 years last past; that at no time during her life has she lived in any state, territory, district, or county other than where she now resides; that her name is Maria McCorkle; and plaintiff further says that, by reason of the fraudulent conduct of defendant, he procured said fraudulent judgment to be rendered; that the court had no jurisdiction of her person to render any judgment against her in said suit to quiet title to said real estate; that said judgment is both fraudulent and void, but is a cloud upon her title to one-third of said real estate; wherefore she asks that said judgment be adjudged void as to her, and set aside and held for naught; that she have partition of said real estate; that she be adjudged the owner in fee of the one-third of the same; that commissioners be appointed to make partition; and that she have all other further and proper relief. To this complaint there was an answer filed in five paragraphs. To the third and fifth a demurrer was sustained. The fourth paragraph of what purported to be the answer was a counterclaim. To this paragraph plaintiff filed an answer in three paragraphs. A demurrer was sustained as to the second of these, and overruled as to the third. A reply to the second paragraph of the answer was filed in three paragraphs. To the first and third of these a demurrer was overruled. The issues as made, and upon which the cause was tried, were upon the complaint, the first, second, and fourth paragraphs of answer, the reply to the second paragraph of the answer, in three paragraphs, and first and third paragraphs of answer to the counterclaim. The court found the facts specially, and stated his conclusions of law thereon. The defendant excepted to each conclusion of law, and thereupon moved for judgment in his favor, which motion was overruled. The plaintiff moved for judgment in her favor, which motion was sustained. The appellant has assigned many errors, being numbered in the record from 1 to 13, inclusive. Some of these have not been discussed by him, and are therefore waived. We will endeavor to consider such questions as were assigned as error, and have been discussed.

The complaint sets forth evidentiary facts, as well as facts which the statute requires shall be pleaded. This was evidently done that plaintiff's cause of action might be tested by demurrer. “Ordinarily, an action for partition does not present the question of title for adjudication, but the pleadings may be so framed as to present that question. Where a plaintiff undertakes to set forth the facts which constitute his title, he will fail, unless the facts are sufficient to clothe him with the title asserted; and it is the facts sufficiently pleaded which will control, and not the general averments.” Spencer v. McGonagle, 107 Ind. 412, 413, 8 N. E. Rep. 266; McPheeters v. Wright, 110 Ind. 521, 10 N. E. Rep. 634; City of Logansport v. McConnell, 121 Ind. 417, 23 N. E. Rep. 264. The complaint before us must be tested by applying the law to the facts specially pleaded, for it is the rule that if, under the law, the defendant's appears to be the better title, or if the plaintiff's title appear not sufficient to entitle her to recover on its own strength, then the complaint should be held bad. The demurrer was for want of facts. The complaint shows that plaintiff resided in Shelby county, Ind., for 70 years continuously, and that the only service as to her was by publication, addressed to --- McCorkle, wife of John McCorkle; that the husband had died May 20, 1880. We recognize the rule that, even on constructive service, the question of the jurisdiction of a court of record over the parties to any domestic judgment must in all collateral proceedings, where fraud is not shown, be determined by the record, where the jurisdiction affirmatively appears from the record. In such case it would import absolute credit and verity, and parties could not be heard to impeach it. In such case it will be conclusively presumed that the court acted upon ample evidence, and with due deliberation, before making such statement; and the judgment will be impregnable to any collateral assault by proof aliunde. In Muncey v. Joest, 74 Ind. 412, the court say: “There is a clear distinction between cases in which there is no notice whatever and those in which there is a mere defective or irregular notice. The general rule upon the subject, deducible from the authorities, may be thus stated: If there is no notice whatever, and this affirmatively appears upon the face of the proceedings, the judgment will be void, and may be overthrown by a collateral attack. If a court having jurisdiction, and being required to determine all jurisdictional questions, either expressly or impliedly...