Wilhite v. Wilhite
| Decision Date | 04 June 1890 |
| Docket Number | 14,216 |
| Parties | Wilhite et al. v. Wilhite et al |
| Court | Indiana Supreme Court |
From the Montgomery Circuit Court.
Judgment affirmed with costs.
M. E Clodfelter, T. E. Ballard and E. E. Ballard, for appellants.
W. H Thompson, J. West, J. E. Humphries and G. D. Hurley, for appellees.
The appellants filed their complaint in two paragraphs, to each of which the appellees filed demurrers which the court sustained, and the appellants excepted, and relying upon these exceptions refused to amend their complaint, and judgment was rendered against them for want of a complaint.
The errors assigned are, that the court erred in sustaining demurrers to the paragraphs of complaint.
The paragraphs of complaint are quite lengthy. The substance of the first paragraph is as follows:
On the 14th day of November, 1879, and for a long time theretofore and ever since, the appellants were the owners of the real estate in the said paragraph described; that until within a few days of the commencement of this action the plaintiffs were minors, and that the transactions and matters of fact complained of all occurred during their minority, and without their knowledge or consent; that on the 14th day of November 1879, the appellees Fisher Doherty and Alfred G. McLelland filed in said court their complaint against the appellants and others, to subject the said real estate to the payment of a debt of about $ 200, therein alleged to be due to them from one James H. Wilhite; that it was alleged in said complaint that the said James H. Wilhite had purchased the said real estate, paid the full consideration therefor, and to defraud his creditors had caused the same to be conveyed to the appellants; that on the 7th day of October, 1880, the appellants were called to answer to said action, and failing to appear were defaulted; and upon the same day the said complaint was taken by the court as confessed, and a judgment rendered against them that said conveyance was fraudulent as against the plaintiffs in said action, and a decree entered ordering the sale of said real estate; that the record fails to show that the appellants were ever present in court in person, or by counsel, and in no way discloses that the appellants were infants; that the appellants were not in court at any time during the pendency of said trial; that no guardian ad litem was appointed for them, and no person appeared for them in any capacity; that said judgment and decree were rendered on said default without evidence; that when said complaint was filed and said default taken the said Fisher Doherty, Alfred G. McLelland, and Harvey T. Wilhite, well knew that the appellants were minors, under fifteen years of age, and concealed that fact from the court in order that said judgment might be obtained by default; that at the time said complaint was filed, said default taken, and said judgment rendered, the appellants had a good and valid defence to said action; that they were the owners in fee of said real estate, having purchased the same and paid full value therefor; that said James H. Wilhite did not have any interest therein; that said real estate was not conveyed to the appellants for the purpose of defrauding creditors, and that some of the material allegations in the complaint were true, as against the appellants; that afterwards, and on the 13th day of April, 1881, pursuant to a certified copy of said judgment and decree, the sheriff of said county of Montgomery, sold said real estate to the judgment plaintiffs in said action for the exact amount of the judgment rendered on the said alleged indebtedness, and the costs accruing in said action; that afterwards, and before the year of redemption expired, the said purchasers assigned their sheriff's certificate to the appellee Harvey T. Wilhite, and when the year of redemption expired he obtained a sheriff's deed for said real estate; that, on the 10th day of September, 1885, the appellee Harvey T. Wilhite filed in said court his complaint against the appellants and others to quiet his alleged title to said real estate; that at said time the only right or title held by him was such as he derived from said sheriff's sale and deed; that, at the time of filing said complaint, by endorsement thereon, the summons was made returnable September 22d, 1885; that the clerk of said court issued said summons on said 10th day of September, returnable on said 22d day of September, and on the 12th day of said month of September the said summons was served on the appellants by reading, and on the 15th day of said month, without the knowledge or consent of the appellants, the court appointed W. S. Moffett, Esq., guardian ad litem for the appellants, and immediately following his appointment said Moffett filed an answer in general denial of the complaint, and agreed that said cause might then and there be tried by the court, and admitted in open court that the allegations of the complaint were true, and that the appellants had no title or interest in or to said real estate, or...
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