Winstead v. Koonce, 30011
| Decision Date | 14 March 1961 |
| Docket Number | No. 30011,30011 |
| Citation | 172 N.E.2d 859,241 Ind. 440 |
| Parties | Zeta K. WINSTEAD, Personal Representative of the Estate of Amy B. Koonce, Deceased, Elbert Koonce, Appellants, v. Patricia KOONCE, Zola K. Emmick, Zeta K. Winstead, Appellees. |
| Court | Indiana Supreme Court |
Frank M. Fish, Evansville, for appellants.
Ralph M. Koehne, Evansville, for appellee Patricia Koonce.
This is an appeal from an interlocutory order entered in the estate of Amy B. Koonce by the Vanderburgh Probate Court for the payment of $960 out of the distributive share of appellant, Elbert Koonce, to satisfy a judgment against him in the Superior Court of Vanderburgh County.
Appellant-Koonce is a party to the present appeal pursuant to the provisions of Acts 1953, ch. 112, § 122, p. 295, being § 6-122, Burns' 1953 Replacement.
Appellees, Zola K. Emmick and Zeta K. Winstead, have filed their verified motion to dismiss the appeal herein as to each of them because they were not parties to the judgment in the Superior Court of Vanderburgh County involved herein, and have no interest in the interlocutory order from which this appeal is prosecuted. The record sustains these allegations and the appeal herein is, therefore, dismissed as to appellees, Zola K. Emmick and Zeta K. Winstead, and each of them.
Appellee, Patricia Koonce, on July 24, 1956, secured an order against appellant, Elbert Koonce, in the Chancery Court of Pulaski County, Arkansas, for $40 per week for the support of their minor children. Subsequently she obtained a judgment against appellant-Koonce in the sum of $960 in the Arkansas Court for delinquent payments due under the support order. On May 15, 1959, she obtained a default judgment, based upon the judgment in the Chancery Court of Pulaski County, Arkansas, against appellant, Elbert Koonce, in the Superior Court of Vanderburgh County, Indiana.
On July 22, 1960, appellee, Patricia Koonce, filed a petition in the Vanderburgh Probate Court in the estate of Amy B. Koonce, deceased, asking that the personal representative of said estate be ordered to pay to the clerk of the Superior Court of Vanderburgh County 'so much of the distributive share' of appellant, Elbert Koonce, as is necessary to satisfy her judgment in the Superior Court of Vanderburgh County. To this petition appellant, Zeta K. Winstead, as the personal representative of the estate of Amy B. Koonce, deceased, filed a motion to strike, alleging that the Superior Court judgment upon which the petition is based was void. This motion was overruled and the personal representative ordered to make payment pursuant to the petition of appellee, Patricia Koonce. From such order appellant, Elbert Koonce, prosecutes this appeal.
It is asserted here that the judgment in the Superior Court of Vanderburgh County was in personam and since notice was only by publication the judgment is based upon 'constructive service only' and is, therefore, void. The pertinent parts of such judgment are as follows:
'It is further found by the Court that the plaintiff herein duly filed, on the 28th day of May, 1957, her written undertaking, with the Capitol Indemnity Insurance Company, as surety thereon, in the sum of Five Hundred Dollars ($500.00), payable to the defendant, Elbert Koonce.
'The Court further finds that the defendant at the commencement of the within action was the owner of an undivided one-third (1/3) interest in the following described real estate, situated in Vanderburgh County, State of Indiana, to-wit:
Lot No. 51, in Tuxedo Place, an Addition to the City of Evansville, Vanderburgh County, Indiana.
that the above described real estate was an asset of the estate of Amy B. Koonce, deceased, which estate is pending in the Vanderburgh Probate Court, Vanderburgh County, Indiana, and that the defendant is the owner of an undivided one-third (1/3) interest in said estate; that plaintiff is entitled to have the interest of the defendant in said estate attached for the satisfaction of the within judgment and for her costs and charges laid out and expended.
'It Is, Therefore, Considered, Adjudged and Ordered by the Court that the plaintiff recover of and from the defendant the sum of Nine Hundred Sixty Dollars ($960.00), together with her costs laid out and expended and that the defendant's interest in the estate of Amy B. Koonce, deceased, pending in the Vanderburgh Probate Court, Vanderburgh County, Indiana, be attached to the extent which may be necessary to be applied to the payment of the within judgment, and the costs of this action.'
In our opinion the motion to strike the petition of appellee, Patricia Koonce, which was filed in the Probate Court was a collateral attack upon the judgment in the Superior Court. Spencer v. Spencer, 1903, 31 Ind.App. 321, 328, 67 N.E. 1018; First State Bank of Valparaiso v. Crumpacker, 1950, 120 Ind.App. 317, 325, 90 N.E. 912; Clark v. Clark, 1930, 202 Ind. 104, 114, 172 N.E. 124; 17 I.L.E. Judgment § 273, p. 349; 30 Am.Jur., Judgments, § 862, p. 776.
A judgment regular on its face and one which the court had jurisdiction to render is not subject to collateral attack. Quarl v. Abbett, 1885, 102 Ind. 233, 241, 1 N.E. 476, 52 Am.Rep. 662; Cassady et al. v. Miller et al., 1886, 106 Ind. 69, 71, 5 N.E. 713; Hall et al. v. Durham, 1887, 109 Ind. 434, 435, 9 N.E. 926, 10 N.E. 581; Glansman v. Ledbetter, 1921, 190 Ind. 505, 518, 130 N.E. 230; Grantham Realty Corp. v. Bowers, Jr., Tr., 1939, 215 Ind. 672, 679, 680, 22 N.E.2d 832; 17 I.L.E. Judgment § 271, p. 346; § 297, p. 361.
While the judgment of the Superior Court of Vanderburgh County as shown by the record herein may contain some elements of a judgment in personam, it is our opinion that the part thereof above quoted constitutes a judgment in rem, and any other parts thereof which may have the characteristics of a judgment in personam are harmless to the judgment debtor in this case and, for the purpose of this action, are mere surplusage. See: Quarl v. Abbett, 1885, 102 Ind. 233, 240, 1 N.E. 476, 22 Am.Rep. 662, supra.
The judgment of the Superior Court of Vanderburgh County here in question is regular on its face and one which, from the record here, is such the court had the jurisdiction to render and it is, therefore, not subject to a collateral attack such as has been attempted upon it.
It is stated there has not been compliance with the attachment statute, and it is alleged in the petition to strike that 'no writ of attachment has ever been issued' in the cause of action on which the Superior Court judgment was based. There is nothing in the record here to support these conclusions, nor is there anything from which we might reasonably conclude that the attachment statute was not strictly followed. The contrary not being shown, we will indulge every reasonable presumption in favor of the action of the Superior Court. Henderson v. Kleinman, 1953, 231 Ind. 657, 662, 109 N.E.2d 905; F. W. & H. Ind. Tr. & App. Pract., 2790, Comment I, p. 370, and cases there cited.
The Probate Court of Vanderburgh County did not err in its interlocutory order herein and the judgment of the trial court must be affirmed.
Judgment affirmed.
I cannot agree with the majority opinion in this case for several reasons as hereinafter set forth.
It appears from the record and the oral argument in this court, that the appellant, Elbert Koonce, and appellee, Patricia Koonce, are both residents of Pulaski County, Arkansas. It further appears from the record that on July 24, 1956, the Chancery Court of Pulaski County, Arkansas, entered an order directing the appellant, Elbert Koonce, to pay Forty Dollars ($40.00) per week for the support of his minor children; that thereafter the appellant permitted said payments to become delinquent and appellee recovered a judgment in cause No. 104165 in said court for said arrearage in the sum of nine hundred sixty dollars ($960.00), together with costs.
Thereafter, so far as we are able to ascertain from the record here, appellee filed suit on the Arkansas judgment in the Superior Court of Vanderburgh County, Vanderburgh County, Indiana, against the appellant, Elbert Koonce, service of process on ...
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