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(144 N.E.) lant and her husband turned and went in No intoxicating liquor was found in the the other direction from the sheriff and his car. deputies and the red flag, the sheriff says he There was some evidence that Mr. Batts, got in his car and followed. He said he after his car was shot up, threw something heard several shots, and had authorized out. Some witnesses for the state testified shooting to stop cars when halted, although that they went to the place and found some there was no evidence of guilt except that wooden kegs and jugs that smelled like they the party failed to stop when ordered to had had whisky in them. This evidence was do so. When they caught up with the appel- admitted over the appellant's objections that lant and her husband who was examining they were procured by an unlawful search the tires they say he was on the top of the and seizure of appellant's effects without hill ; "the machine was down, the tires any search warrant in violation of appellant's down, and the radiator down."

constitutional rights. If it is true that the It appears from the testimony of the sher- Batts had in their car intoxicating liquor at iff and his deputies, who are not contradict the time of their arrest, it is also true, aced, that the appellant and her husband were cording to the testimony of the sheriff and traveling in a Ford coupé along the Ocean his deputies, that the sheriff in accomplishing to Ocean highway; that the sheriff and his its capture violated the constitutional rights assistants had no search warrant for any of the appellant as guaranteed by article 1, one; that they saw no evidence of the viola- $ 11, of the Constitution of Indiana (Burns' tion of any law by the appellant or her hus. 1914, § 56); Callender v. State (Ind. Sup.) band, and did not suspect them of any when 138 N. E. 817. Article 1, $ 11 (Burns' 1914, the sheriff and his deputies, all armed, walk- $ 56), provides as follows: ed out in the middle of the road in front of

"The right of the people to be secure, in them; that the appellant's husband, driv- their persons, houses, papers, and effects, ing the car, then turned around and started against unreasonable search or seizure shall to go in the opposite direction from the arm not be violated; and no warrant shall issue, ed men ; that he gave as a reason for turn- | but upon probable cause, supported by oath or ing that he thought they were highwaymen; affirmation, and particularly describing the that the armed men stationed at an old place to be searched and the person or thing barn on the roadside, without seeking or sus

to be seized.” pecting any violation of the law, ordered them to halt, and on their failing to do so A similar provision is found in the United shot up and disabled their car, and then, States Constitution and the Constitution of after being joined by the sheriff, arrested nearly every state in the Union. them. Their only excuse for the arrest is In Hughes v. State of Tennessee, 145 Tenn. that the appellant and her husband did not 544, 238 S. W. 588, 20 A. L. R. 639, it was stop when ordered to do so. When the sher- held that, where police officers arrestone iff had caught up with the fleeing man and on the highway without a warrant or eviwoman in their disabled Ford coupé the dence of commission of crime in their pressheriff's deputy, Mr. Donahue, got out of the ence, evidence discovered by the search of car first, and Mr. Batts, appellant's husband, his person and conveyance subsequently to said to him, "Are you the man that was the arrest cannot be utilized to secure his shooting at me?' and Mr. Donahue said, conviction. "No; I was not shooting at you but at your Hughes v. State, supra, finds support by tire;" and the appellant and her husband analogy in Roberson v. State, 43 Ma. 156, 29 were then arrested by the sheriff. The sher- South. 535, 52 L. R. A. 751; Pickett v. State, iff says one or two machines went by before 99 Ga. 12, 25 S. E. 608, 59 Am. St. Rep. 226; these persons came along. “We did not hola State v. Lutz, 85 W. Va. 330, 101 S. E. 434; them up; we compelled them to stop, and Douglass v. State, 152 Ga. 379, 110 S. E. just looked into the car and told them to go 168; Caffinni v Hermann, 112 Me. 282, 91

Atl. 1009; People v. Marxhausen, 204 Mich. The testimony of the appellant and her 559, 171 N. W. 557, 3 A. L. R. 1505; Gouled husband was to the effect that they lived v. United States, 255 U S. 298, 41 Sup. Ct. near Indianapolis, and that Mrs. Batt's fa- 261, 65 L. Ed. 647; Youman v. Commonther lived at Terre Haute, and that he had wealth, 189 Ky. 152, 224 S. W. 800, 13 A. L. written her on February 28 that he was R. 1303; Amos Case, 255 U. S. 313, 41 Sup. sick and wanted to see her, and that in pur. Ct. 266, 65 L. Ed. 654; Fidelity & Guaranty suance to that request they had gone to Co. v. State, 121 Miss. 369, 83 South. 610; Terre Haute; that her husband drove the State v. Peterson, 27 Wyo. 185, 194 Pac. car, and she had nothing to do with the 342, 13 A. L. R. 1284. See, also, United management or control of it; that they came States v. Slusser (D. C.) 270 Fed. 818, and back by way of Rockville because they had cases there cited; United States v. Kelih (I learned the road was better that way; that C.) 272 Fed. 484; United States v. Rykowski they had no intoxicating liquor in the car (D. C.) 267 Fed. 866; Dukes v. United States or on their persons

(C. C. A.) 275 Fed. 142, and cases there cited.

on."

[5] A search for liquor which was unlaw- 5. Judgment w 457-One alleged to have aided ful when it began does not become lawful in fraudulently obtaining judgments, but because liquor is found. United States v.

against whom no relief was sought, held not a Slusser, supra.

necessary party to cross-complaint. [6] Evidence procured by an officer by un

In an administrator's proceeding to sell

real estate to lawful search and seizure is not admissible heirs filed cross-complaint in the nature of ac

pay judgment creditors, where against a defendant. Callender V. State tion to set aside the judgments for fraud, one (Ind. Sup.) 138 N. E. 817; Gouled v. United not a party to any of the judgments, and who States, supra; Amos v. United States, su- the cross-complaint alleged aided the fraud but pra.

against whom no relief was asked, was not a For error in overruling appellant's mo- necessary party to the cross-complaint, in view tion to quash the affidavit, the judgment of Burns' Ann. St. 1914, § 269. must be reversed.

6. Appeal and error Om 1061 (2)-Dismissal as Judgment reversed, with instructions to

to party whom amendment could not mako sustain appellant's motion to quash.

necessary party is harmless.

Where the pleading is insufficient as against a party, and is not amendable to state a cause of action against him, dismissal as to him is

harmless. PATTISON et al. v. GRANT TRUST & SAV. INGS CO. et al. (No. 24629.)

7. Executors

and administrators en 338

Cross-complaint, in proceeding to sell land, (Supreme Court of Indiana. May 23, 1924.) properly dismissed as to parties whose claims

were not alleged to have been allowed against 1. Appeal and error 761-Failure of appel- estates. lant's brief to state points and propositions

In an administrator's proceeding to sell under error assignments waives error.

property to satisfy judgments on decedent's Under Supreme Court Rule 22, failure of notes, a cross-complaint by heirs, alleging fraud appellant's brief to state points or propositions in obtaining the notes and joining certain parreferring to, or under the heading of, certain ties as buyers of some of the notes, was propassignments of error, waived the errors.

erly dismissed as to them, in the absence of 2. Insane persons 100-Judgment on notes allegations that their claims had been filed or in action against guardian held res judicata. allowed against the estate, in view of Burns'

As respects notes executed before maker Ann. St. 1914, § 2844. became insane and guardian was appointed 8. Appeal and error 1011(1).-Judgment not for him, judgments on the merits on the notes disturbed where evidence conflicting. in actions against the guardian, in which sum

Where the evidence conflicts, the judgment mons for the ward was served by reading to of the trial court will not be disturbed. the guardian under Burns' Ann. St. 1914, $ 318, were not merely equivalent to making allowances against guardian for amounts of the notes ty; G. H. Henry, Special Judge.

Appeal from Circuit Court, Grant Coun. under section 2838, which allowances would be extinguished when guardianship was terminat- Proceeding by the Grant Trust & Savings ed, but the judgments were conclusive of the Company, as administrator of the estate of validity of the notes, precluding attack on that James I. Hogston, deceased, and others, in ground by heirs in proceeding by administra- which Mary A. Pattison and other heirs tor to sell deceased maker's realty to make filed cross-complaint. Transferred from Apassets to pay the judgments.

pellate Court under section 1397, Burns' Ann. 3. Insane persons On95-Statute as to con- St. 1914. Judgment for the administrator,

structive notice construed; “personal serv- and cross-complainants appeal. Affirmed. ice." Burns' Ann. St. 1914, § 399, prohibiting

Wm. H. Eichhorn, of Bluffton, and Wm. personal judgment upon constructive notice, J. Houck and John A. Kersey, both of Marefers to notice given under sections 320, 322, rion, for appellants. 323, and not to summons to person of unsound Stricler & Messick, Van Alta & Clawson, mind served upon the guardian of such person and David M. Bell, all of Marion, for appelunder section 318; such service being personal lees. service. [Ed. Note.--For other detinitions, see Words

GAUSE, J. Appellee the Grant Trust & and Phrases, First and Second Series, Personal Service.]

Savings Company, as administrator of the

estate of James I. Hogston, deceased, filed 4. Judgment Cw 17 (3)-Court cannot acquire its petition herein to sell the real estate of jurisdiction by constructive service to ren- said decedent to make assets with which to der personal judgment against nonresident. A court cannot acquire jurisdiction by con. alleged that a part of the indebtedness of

pay the debts of said estate. Said petition structive, or substituted, service, to render a personal judgment against a nonresident, not said estate consisted of five judgments, appearing, but as to residents within the state amounting to about $15,000, which had been the Legislature may authorize personal judg- rendered against said decedent in his lifements upon proper substituted service.

time; the judgment creditors in said fiva em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(144 N.E.) judgments being Richard A. Hogston, Emma, lieve that said notes were valid. It is also Jaqua, and Emma Frelof Jaqua, who are alleged that said parties prevailed upon also appellees herein. The appellants are said guardian to prevent other attorneys two of the children of said decedent and employed by the appellants from appearing were made defendants to said petition to in said suits and defending the same. The sell,

prayer of said cross-complaint was that said Appellants filed a partial answer to said five judgments be set aside and that the appetition, in which answer it was alleged that pellants be permitted to set up said desaid judgments were rendered upon notes fenses to said notes and for other proper rewhich were forgeries and which had been lief. The court upon motion dismissed said procured through fraud and by duress and cross-complaint as to Alfred Hogston, the without consideration. It was also alleged Citizens' Trust & Savings Company, and that said decedent, at the time the judgments Thos. D. Barr. were rendered, was under guardianship as The issues were closed by general denials. an infirm person, and that he was weak The appellants filed with their cross-comphysically and mentally and unable to be plaint separate lists of interrogatories which present in court when said judgments were they asked that Alfred Hogston, Emma Jarendered. It is then alleged that said judg- qua, and Emma Trelof Jaqua be required to ments were procured through the fraud and answer. These interrogatories all related to collusion of the judgment plaintiffs with the validity of the notes upon which the the guardian and his attorney, and also judgments were rendered and concerned the that through the fraudulent conduct of an- consideration therefor and the circumstances other son of the decedent no defense was under which they were given. The court made to said actions. It is alleged that said upon motion struck out all of said interjudgments are void, and appellants say that rogatories. there is no necessity to sell said real estate Said cause was submitted to the court, to pay such judgments, and ask that only and there was a finding and judgment for the so much of the real estate be ordered sold administrator upon his petition to sell and as is necessary to satisfy other debts of said against the cross-complainants upon their estate. The court upon motion of appellees cross-complaint, and said land was ordered struck out parts of said answer which sought sold, and there was a judgment against apto attack the validity of said judgments and pellants for costs upon the cross-complaint. of the notes upon which they were framed, [1] Appellants filed a motion for a new because of alleged fraud in the procure trial, which contained many alleged reasons, ment of said notes.

but the only stated reason referred to in Appellants filed a cross-complaint and made appellants' statement of points and author. defendants thereto the administrator of ities in their brief is that the finding of the said estate, the judgment plaintiffs in said court is not sustained by sufficent evidence. five judgments, and also Alfred Hogston, The court overruled the moton for a new Thomas D. Barr, and the Citizens' Trust & trial. Savings Company. Said cross-complaint was The appellants have assigned as error in in the nature of an action to set aside said this court the following: judgments on the ground of fraud practiced

"(T) The court erred in sustaining the moin obtaining them. It is alleged in said cross- tion to strike out parts of the amended partial complaint that said five judgments were ren- answer, as to the first paragraph of the modered upon notes which were spurious and tion. were obtained through duress practiced by .. (2) The court erred in sustaining the mosaid Alfred Hogston; that said Alfred Hog. tion to strike out parts of the amended partial ston obtained a series of spurious notes answer, as to the second paragraph of the mo

tion. from said decedent by fraud and duress and

“(3) The court erred in striking out the indistributed some of them to the said judg. terrogatories to Alfred Hogston. . ment plaintiffs, and that he sold one of said “(4) The court erred in striking out the in

notes to Thos. D. Barr and one to the Citi- terrogatories to Richard A. Hogston. zens' Trust & Savings Company. It is then “(5) The court erred in striking out the inalleged that said five judgments were obterrogatories to Emma Jaqua. tained through the fraud of the judgment

(6) The court erred in striking out the inplaintiffs and said Alfred Hogston. It is

terrogatories to Emma Frelof Jaqua. alleged that at the time suits were brought tion of Alfred Hogston to dismiss the amend

“(7) The court errod in sustaining the moby said Richard A. Hogston, Emma Jaqua, ed cross-complaint as to himself. and Emma Trelof Jaqua, the said James (8) The court erred in sustaining the moI. Hogston was under guardianship and un- tion of the Citizens' Trust & Savings Company able to assist in any defense to said notes, to dismiss the amended cross-complaint as to it. and that said plaintiffs and Alfred Hogston

(9) The court erred in sustaining the mo

tion of Thomas D. Barr to dismiss the amendfraudulently prevented any defense being ed cross-complaint as to himself. made thereto and fraudulently induced the

"(10) The court erred in overruling the moguardian of said James I. Hogston to be | tion for a new trial.”

There are no points or propositions stated, tate could have ordered them paid out of in appellants' brief referring to or under the such estate, or, if the guardian paid them, heading of either the first or second assign- he would have been entitled to reimbursement of errors. Under rule 22 of this courtment out of such estate, providing they were such alleged errors are waived. Baker v. proper charges against said ward. Rooker Stehle (1918) 187 Ind. -468, 119 N. E. 4. v. Rooker (1878) 60 Ind. 550; Kinsey v.

[2] Propositions 1 to 12, inclusive, of ap- State ex rel. (1880) 71 Ind. 32; Stumph v. pellants' brief, in so far as they refer to any Goepper (1881) 76 Ind. 323; Vogel v. Vogler specific assignments of error, refer to assign- (1881) 78 Ind. 353; Ray v. McGinnis (1882) ments numbered 3, 4, 5, and 6, which chal. 81 Ind. 451; Elson v. Spraker (1885) 100 lenge the action of the court in striking out Ind. 374; Lewis v. Edwards (1873) 44 Ind. the several sets of interrogatories. These in- 333; Turner v. Flagg (1893) 6 Ind. App. 563, terrogatories all sought to elicit information 33 N. E. 1104; Hall v. Ferguson (1900) 24 relating to the validity of or consideration Ind. App. 532, 57 N. E. 153. for the notes upon which the judgments If such judgments or allowances against were rendered.

the guardian were not paid when the ward Appellants take the position that the five died, then in a proceeding such as this, to judgments referred to in the pleadings are sell the lands of the deceased ward, by his void as judgments; that they only have the administrator, the heirs of such estate would effect of allowances against the guardian- not be precluded from contesting the validship, and that when the ward died and the ity of such obligations. But we have an enguardianship was ended, the allowances tirely different situation here. In the case were extinguished; that no personal judg- at bar suits had been brought upon notes al. ment could be rendered against the ward, leged to have been executed by said ward and that the validity of the notes upon himself before the guardian was appointed which the judgments were rendered is in and at a time when it is not claimed the question in this proceeding, so that interrog- ward was of unsound mind. The suits were atories relating to the validity of such obli- against the ward, and it is not alleged in ei. gations and the circumstances of their crea- ther said answer or said cross-complaint tion are pertinent.

that process was not served upon the ward. There is in fact only one question raised In fact, the evidence shows that in each case by the action of the court in striking out the a summons for said ward was issued and interrogatories propounded to the several served by reading to the guardian, which is parties, and that question is whether, in a the manner provided by the statute for serv. proceeding brought by an administrator to ice of process upon persons under guardiansell real estate of a decedent to make assets ship. Section 318, Burns' 1914. with which to pay judgments rendered Appellants seek to draw a parallel beagainst the decedent in his lifetime, the tween judgments rendered against a person heirs can attack the validity of notes upon who is at the time under guardianship, and which the judgments were obtained, where an allowance made by the court against dethe judgment debtor, at the time the actions cedent's estate; but the cases widely differ. were brought and judgments obtained, was An action against the person who is under under guardianship as a person of unsound guardianship may result in a personal judg. mind, but which notes were claimed to have ment if there is a personal liability, the been executed before he became of unsound same as against any other defendant, while mind and before the guardianship.

the statute expressly prohibits an action We think the answer must be that under against an administrator upon a claim, but the circumstances stated in the question, the provides for the filing of the claim and for rendering of the judgments upon said notes the allowance thereof either by the adminiswas an adjudication of the validity of the trator or, if he disallows it, then by the sa me, and the heirs cannot set up in the pro- court, and section 2838, Burns 1914, then ceedings to sell any defense which either provides as follows: was or might have been litigated in the ac

"The allowance of a claim, as provided for tions on the notes.

in this act, shall, as between the claimant and Appellants contend that the rendering of the executor or administrator, be operative, the judgments in such cases was only equiv. and as an adjudication of the validity and alent to making an allowance against the amount of the claim, and presumptive evidence guardian for such amounts, and that such al- thereof in any proceeding by the executor or lowances were extinguished when the guard- administrator for the sale of the real estate ianship was terminated.

of the decedent to discharge the liabilities of

his estate." If the actions had been against the guardian upon contracts or obligations of the In view of this statute, decisions holding guardian, then, so far as the estate of the that in a proceeding by the administrator to ward was concerned, the judgments ren- sell real estate, the heirs may contest the dered could not have been enforced by exe- validity of a claim theretofore allowed by cution against the ward's property; but the the court against said estate, are not in court having jurisdiction of the ward's es- point on the question here involved.

(144 N.E.) [3] Appellants contend that service of pro- pheld in the above case that as to residents cess by reading to the guardian, as provided within the state, the state had jurisdiction by the statute, and as in fact was done in to subject them to her judicial power; but the suits here involved, only constituted con- this was not so as to nonresidents; that as structive notice, and that no personal judg- to residents, the state had power to determent could be rendered against the ward up- mine how they should be notified while on that kind of notice.

within the state, and that persons so notiSection 399, Burns' 1914, provides that no fied were regarded as personally and not personal judgment shall be rendered against constructively summoned. It was therefore a defendant constructively summoned. Ap- held that a personal judgment was valid alpellants are in error in viewing a summons though no actual notice was had, if the stat. against an insane ward, served by reading ute was complied with. to his guardian, as constructive service, As to the power of the state to prescribe within the purview of the above statute. the manner of service of process, other than

Sections 320, 322, and 323, Burns' 1914, by actual personal notice, upon residents provide for constructive service of process, within the state and authorize personal which consists of two forms, either notice judgments thereon, see Beard v. Beard (1863) by publication to nonresidents or persons ab- 21 Ind. 321; Freeman on Judgments (4th sent or concealing themselves, or personal Ed.) vol. 1, § 127; Black on Judgments, vol. notice outside of the state, which shall have 1, § 277; note in 35 L. R. A. (N. S.) 292; the effect of notice by publication. It is note in 50 L. R. A. page 585. clear that section 399, Burns' 1914, prohibit- [4] The conclusion from the above, and ing a personal judgment upon constructive many other authorities, is that a court cannotice, refers to notice given in one of the not acquire jurisdiction by constructive or above ways.

substituted service, to render a personal Section 318, Burns' 1914, provides for judgment against a nonresident who does what is called personal service. It provides not appear, but that as to residents who are for service either personally upon the de- within the state the Legislature may aufendant, or by leaving a copy at his usual thorize personal judgments upon proper suband last place of residence, and then prostituted service. vides that,

It was expressly recognized by the United "Process against persons of unsound mind States Supreme Court that service of process shall be served upon the guardian of such per- upon a guardian may be sufficient to give a sons, if there be guardian."

state court jurisdiction to render a personal

judgment against the ward. New York L. Section 399, supra, does not have refer- Ins. Co. v. Bangs (1880) 103 U. S. 435, 26 L. ence to a summons served in the manner Ed. 580. specified in section 318, supra. It cannot be We have a statute which makes it the said that it is only when the summons is duty of the guardian of a minor to appear served by reading to the defendant person- for and defend all suits against the ward. ally that there has been personal service, Section 8068, Burns' 1914. The statute preand in all other cases that it is constructive scribes the same powers and duties for service within the meaning of the statute, guardians of insane persons. Section 3107, because it has been held in this state that Burns' 1914. As we have seen, the statute personal service refers to service other than also provides how process shall be served by publication, or, what is its equivalent, upon such ward. service without the state. Dunkle v. Elston The record in this case shows that not (1880) 71 Ind. 585. It has been repeatedly only was the summons served upon said held in this state that service of process by ward in the manner provided in the statute, leaving at the last and usual place of resi- but that his guardian appeared for him and dence of the defendant is not constructive filed answers of general denial, non est facservice, although the defendant did not re- tum, want of consideration, and duress; ceive the notice. Sturgis v. Fay (1861) 16 that the issues thus formed were submitted Ind. 429, 79 Am. Dec. 440; Pigg v. Pigg to the court and the judgments involved (1873) 43 Ind. 117; Dunkle v. Elston (1880) were rendered after a hearing thereof. 71 Ind. 585.

These judgments were binding upon said "It has been held that service by copy is ward. See Makepeace v. Bronnenberg (1896) not constructive, but actual, service and is 146 Ind.: 243, 248, 45 N. E. 336. It follows conclusive between the parties." Meyer v. that said judgments constituted an adjudiWilson (1906) 166 Ind. 651, 76 N. E. 748. cation of the validity of the notes upon

which said judgments were predicated, and In the case of Sturgis v. Fay, supra, it was appellants could not litigate the question of claimed that notice by copy, which was not their validity in this action. There was received by the defendant, was not personal therefore no error in striking out interrogabut constructive service, and that therefore, tories which were only pertinent if appelunder the statute above referred to, no per- lants could litigate the validity of the orig. sonal judgment could be rendered. It was inal notes.

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