« ForrigeFortsett »
There are no points or propositions stated in appellants' brief referring to or under the heading of either the first or second assignment of errors. Under rule 22 of this court such alleged errors are waived. Baker v. Stehle (1918) 187 Ind. .468, 119 N. E. 4.  Propositions 1 to 12, inclusive, of appellants' brief, in so far as they refer to any specific assignments of error, refer to assignments numbered 3, 4, 5, and 6, which challenge the action of the court in striking out the several sets of interrogatories. These interrogatories all sought to elicit information relating to the validity of or consideration for the notes upon which the judgments Were rendered. Appellants take the position that the five judgments referred to in the pleadings are void as judgments; that they only have the effect of allowances against the guardianship, and that when the ward died and the guardianship was ended, the allowances were extinguished; that no personal judgment could be rendered against the ward, and that the validity of the notes upon which the judgments were rendered is in question in this proceeding, so that interrogatories relating to the validity of such obligations and the circumstances of their creation are pertinent. There is in fact only one question raised by the action of the court in striking out the interrogatories propounded to the several parties, and that question is whether, in a proceeding brought by an administrator to sell real estate of a decedent to make assets with which to pay judgments rendered against the decedent in his lifetime, the heirs can attack the validity of notes upon which the judgments were obtained, where the judgment debtor, at the time the actions were brought and judgments obtained, was under guardianship as a person of unsound mind, but which notes were claimed to have been executed before he became of unsound mind and before the guardianship. We think the answer must be that under the circumstances stated in the question, the rendering of the judgments upon said notes was an adjudication of the validity of the same, and the heirs cannot set up in the proceedings to sell any defense which either was or might have been litigated in the actions on the notes. Appellants contend that the rendering of the judgments in such cases was only equivalent to making an allowance against the guardian for such amounts, and that such allowances were extinguished when the guardianship was terminated. If the actions had been against the guardian upon contracts or obligations of the guardian, then, so far as the estate of the ward was concerned, the judgments rendered could not have been enforced by execution against the ward's property; but the court having jurisdiction of the ward's es
tate could have ordered them paid out of such estate, or, if the guardian paid them, he would have been entitled to reimbursement out of such estate, providing they were proper charges against said ward. Rooker v. Rooker (1878) 60 Ind. 550; Kinsey v. State ex rel. (1880) 71 Ind. 32; Stumph v. Goepper (1881) 76 Ind. 323; Vogel v. Vogler (1881) 78 Ind. 353; Ray v. McGinnis (1882) 81 Ind. 451; Elson v. Spraker (1885) 100 Ind. 374; Lewis v. Edwards (1873) 44 Ind. 333; Turner v. Flagg (1893) 6 Ind. App. 563, 33 N. E. 1104; Hall v. Ferguson (1900) 24 Ind. App. 532, 57 N. E. 153.
If such judgments or allowances against the guardian were not paid when the ward died, then in a proceeding such as this, to sell the lands of the deceased ward, by his administrator, the heirs of such estate would not be precluded from contesting the validity of such obligations. But we have an entirely different situation here. In the case at bar suits had been brought upon notes alleged to have been executed by said ward himself before the guardian was appointed and at a time when it is not claimed the ward was of unsound mind. The suits were against the ward, and it is not alleged in either said answer or said cross-complaint that process was not served upon the ward. In fact, the evidence shows that in each case a summons for said ward was issued and served by reading to the guardian, which is the manner provided by the statute for service of process upon persons under guardianship. Section 318, Burns' 1914.
Appellants seek to draw a parallel between judgments rendered against a person who is at the time under guardianship, and an allowance made by the court against decedent's estate; but the cases widely differ. An action against the person who is under guardianship may result in a personal judgment if there is a personal liability, the same as against any other defendant, while the statute expressly prohibits an action against an administrator upon a claim, but provides for the filing of the claim and for the allowance thereof either by the administrator or, if he disallows it, then by the court, and section 2S38, Burns' 1914, then provides as follows:
“The allowance of a claim, as provided for in this act, shall, as between the claimant and the executor or administrator,' be operative, and as an adjudication of the validity and amount of the claim, and presumptive evidence thereof in any proceeding by the executor or administrator for the sale of the real estate of the decedent to discharge the liabilities of his estate.”
In view of this statute, decisions holding that in a proceeding by the administrator to sell real estate, the heirs may contest the validity of a claim theretofore allowed by the court against said estate, are not in point on the question here involved.
 Appellants contend that service of process by reading to the guardian, as provided by the statute, and as in fact was done in the suits here involved, only constituted constructive notice, and that no personal judgment could be rendered against the ward upon that kind of notice. Section 399, Burns' 1914, provides that no personal judgment shall be rendered against a defendant constructively summoned. Appellants are in error in viewing a summons against an insane ward, served by reading to his guardian, as constructive service, within the purview of the above statute. Sections 320, 322, and 323, Burns' 1914, provide for constructive service of process, which consists of two forms, either notice by publication to nonresidents or persons absent or concealing themselves, or personal notice outside of the state, which shall have the effect of notice by publication. It is clear that section 399, Burns' 1914, prohibiting a personal judgment upon constructive notice, refers to notice given in one of the above ways. Section 318, Burns' 1914, provides for what is called personal service. It provides for service either personally upon the defendant, or by leaving a copy at his usual and last place of residence, and then provides that— “Process against persons of unsound mind shall be served upon the guardian of such persons, if there be a guardian.”
Section 399, supra, does not have reference to a summons served in the manner specified in Section 318, supra. It cannot be said that it is only When the summons is served by reading to the defendant personally that there has been personal service, and in all other cases that it is constructive service within the meaning of the statute, because it has been held in this state that personal service refers to service other than by publication, or, what is its equivalent, service without the state. Dunkle v. Elston (1880) 71 Ind. 585. It has been repeatedly held in this state that service of process by leaving at the last and usual place of residence of the defendant is not constructive service, although the defendant did not receive the notice. Sturgis v. Fay (1861) 16 Ind. 429, 79 Am. Dec. 440; Pigg v. Pigg (1873) 43 Ind. 117; Dunkle v. Elston (1SS0) 71 Ind. 585.
“It has been held that service by copy is not constructive, but actual, service and is conclusive between the parties.” Meyer v. Wilson (1906) 166 Ind. 651, 76 N. E. 748.
In the case of Sturgis v. Fay, supra, it was claimed that notice by copy, which was not received by the defendant, was not personal but constructive service, and that therefore, under the statute above referred to, no personal judgment could be rendered. It was
held in the above case that as to residents within the state, the state had jurisdiction to subject them to her judicial power; but this was not so as to nonresidents; that as to residents, the state had power to determine how they should be notified while within the state, and that persons so notified were regarded as personally and not constructively summoned. It was therefore held that a personal judgment was valid although no actual notice was had, if the statute was complied with. As to the power of the state to prescribe the manner of service of process, other than by actual personal notice, upon residents within the state and authorize personal judgments thereon, see Beard v. Beard (1863) 21 Ind. 321; Freeman on Judgments (4th Ed.) vol. 1, § 127; Black on Judgments, vol. 1, § 277; note in 35 L. R. A. (N. S.) 292; note in 50 L. R. A. page 585.  The conclusion from the above, and many other authorities, is that a court cannot acquire jurisdiction by constructive or substituted service, to render a personal judgment against a nonresident who does not appear, but that as to residents who are within the state the Legislature may authorize personal judgments upon proper substituted service. It was expressly recognized by the United States Supreme Court that service of process upon a guardian may be sufficient to give a state court jurisdiction to render a personal judgment against the ward. New York L. Ins. Co. v. Bangs (1880) 103 U. S. 435, 26 L. Ed. 5S0. We have a statute which makes it the duty of the guardian of a minor to appear for and defend all suits against the ward. Section 8068, Burns' 1914. The statute prescribes the same powers and duties for guardians of insane persons. Section 3107, Burns' 1914. As we have seen, the statute also provides how process shall be served upon such ward. The record in this case shows that not only was the summons served upon said ward in the manner provided in the statute, but that his guardian appeared for him and filed answers of general denial, non est factum, want of consideration, and duress; that the issues thus formed were submitted to the court and the judgments involved were rendered after a hearing thereof. These judgments were binding upon said ward. See Makepeace v. Bronnenberg (1896) 146 Ind. 243, 248, 45 N. E. 336. It follows that said judgments constituted an adjudication of the validity of the notes upon which said judgments were predicated, and appellants could not litigate the question of their validity in this action. There was therefore no error in striking out interrogatories which were only pertinent if appellants could litigate the validity of the original notes.
 Assignment of error No. 7 challenges the action of the court in dismissing the cross-complaint as to Alfred Hogston. Alfred Hogston was not a proper party to the cross-complaint, which sought to set aside the five judgments heretofore referred to. He was not a party to any of said judgments and could have no interest in any action contesting their validity. The crosscomplaint alleged that said judgments were obtained by fraud and that he participated in and aided said fraud, but no relief was asked or could be obtained against him in said cross-action. He had no interest in the controversy adverse to the cross-complainants and was not a necessary party to the complete determination of the questions involved. Section 269, Burns' 1914.  Since the pleading not only was not sufficient as to him, but could not by amendment have stated a cause of action against him, no harm was done appellants in dismissing the same as to him. Wilson v. Tevis (1916) 184 Ind. 712, 111 N. E. 181.  Assignment of error No. 8 challenges the action of the court in dismissing the cross-complaint as to the Citizens' Trust & Savings Company. The only allegation relating to said company was that a false or spurious note purporting to have been signed by the decedent had been sold by Richard A. Hogston to said company. It is not alleged that said note had been filed or allowed as a claim against said estate, and the holder of a claim which had not been allowed would certainly not be a proper party to the cross-complaint. If the holder of a note which is invalid for any reason files it as a claim and undertakes to enforce it, the statute makes ample provision for litigating the question of its validity. Section 2844, Burns' 1914. There was no error in sustaining the motion to dismiss as to said trust company. Assignment of error No. 9 challenges the action of the court in dismissing the crosscomplaint as to Thos. D. Barr. The only allegation as to said Barr is that Alfred Hogston claimed to have sold a note signed by the decedent to said Barr. For the reasons given under assignment No. 8, above, there was no error in dismissing the crosscomplaint as to said Barr.  Assignment of error No. 10 challenges the action of the court in overruling the motion for a new trial. The only proposition or statement of any point in appellants' brief relating to this assignment is proposition No. 16 in the brief, that the finding of the court is not sustained by sufficient evidence. Under this proposition appellants say that the theory of the partial answer and the crosscomplaint is that the five judgments were obtained by fraud, and they claim that the evidence showed such fraud. Without taking the space to set out the evidence, it will
suffice to say that it was appellants' theory, and they offered evidence for the purpose of proving, that when the several suits were brought which finally resulted in the judgments in dispute, the guardian of said ward employed an attorney to defend said actions, and that through the influence and connivance of Alfred Hogston and the plaintiffs in said suits said attorney and the guardian made no defense thereto, and that the actions of said parties amounted to fraud. It appears from the evidence that these appellants employed other attorneys to defend said actions. The evidence is then conflicting as to whether the attorneys employed by appellants withdrew from the cases because the guardian would not agree to pay for their services or because the guardian and his attorney would not permit them to appear. The guardian filed answers in said suits, including pleas of non est factum, want of consideration, and duress. The evidence is conflicting as to how much effort said guardian and his attorney made to secure evidence to sustain the answers filed, but there is evidence from which the court could well find that a good-faith defense was made. There was substantial evidence tending to support the finding. There was also evidence, which, if believed by the trial court, would have required a different finding. Under such circumstances, this court cannot disturb the judgment. The judgment is affirmed.
EWBANK, C. J., not participating.
SEYMOUR WATER CO. V. LEBLINE. (No. 24672.) (Supreme Court of Indiana. May 15, 1924.) 1. Waters and water courses 3-5 179 (1)–Complaint for flooding land held good as against demurrer. General allegations of complaint for flooding of plaintiff's land caused by dam that plaintiff was owner of land, and that flow of water had been obstructed unlawfully, and without right, to plaintiff's damage, were sufficient as against demurrer.
2. Appeal and error &=960(1) — Requiring plaintiff to furnish abstract of title discretionary with trial court. In action for flooding lands overruling motion to require plaintiff to file abstract of title held not cause for reversal, in absence of abuse of discretion.
3. Pleading 6–5367 (6)—Refusal to require abstract of title held not abuse of discretion. In action for flooding land, refusal of trial court to require plaintiff to furnish abstract of title held not abuse of discretion, it not ap
Q-> For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
(144 N.E.) pearing that there was any doubt as to source, tion to make specific by setting out therein of plaintiff's title, nor that defendant was ig- facts on which each averment is based. norant of any facts which would have been shown by abstract.
12. Witnesses 240(5)-Question held objec
tionable as leading and suggestive. 4. Pleading Ow 194(5) Overruling demurrer Party cannot cause statement of what he to argumentative denial not error.
assumes to be facts in issue to be prepared An argumentative denial is denial of what and then testify to them by affirmative answer is alleged in pleading to which it is addressed, to question whether statement is correct; quesand overruling demurrer to it is not error. tion being objectionable as leading and sug
gestive. 5. Easements en 32-When easement extin
guished by occupation by owner of servient 13. Witnesses aww240(2) Leading questions estate stated.
on formal matters and facts not seriously disWhere easement was created by express
puted within trial court's discretion. written contract, lapse of time and occupation Extent to which leading questions may be by owner of servient fee will not extinguish it, permitted with relation to formal matters and unless there was an absolute denial of the facts not seriously in dispute is controlled by right, and occupation was so adverse and hos-trial court's discretion. tile that owner could have maintained action 14. Evidence @mw 151(1)–Testimony by presi. for obstructing enjoyment.
dent as to intent of corporation admissible. 6. Easements Om 30(1)-Intention to abandon Testimony by president of water corpora. necessary element of abandonment.
tion as to its intent with reference to abandonIntention to abandon and put an end to ment of dam held admissible. easement is necessary element of abandonment. 15. Evidence on 151(1)-Witness with knowl. 7. Waters and water
Om 179(1) edge of intent may testify thereto as a fact, Pleading setting up extinguishment by non When intent with which an act is done is user of easement to maintain dam held de- material, witness having knowledge thereof murrable.
may testify to such intent as a fact. In action for flooding plaintiff's land by 16. Trial w255(1)-Omission to give unredefendant's dam, in which defendant alleged
quested instruction seldom cause for reversal. an easement to maintain dam, demurrer to reply alleging nonuser of dam for many years, tion is seldom cause for reversal.
Mere omission to give uprequested instrucbut not averring intention to abandon easement, should have been sustained.
17. Waters and water courses Om 165-Right 8. Waters and water courses En 165Farming
to maintain dam held to pass as appurtenant land held not adverse possession against right
to mill site without special mention in deed. of flowage.
If owners of mill site through whom defend. Where defendants having easement to main. ants derived title acquired right to maintain tain dam and thereby overflow plaintiff's land dam in connection therewith, such right passed did not exercise right for many years, plain- with conveyance of mill site as appurtenance tist's farming his land and raising crops there without special mention in deed. on held not such adverse possession as would 18. Trial Ow244(3)-Instruction that certain set limitations running against right of flow deed conveyed no greater interest than granage.
tor had held erroneous as in disparagement 9. Adverse possession Cm44Rule stated as
thereof. to necessity that possession be continuous Where defendant claimed right to dam as for prescribed period.
appurtenant to its ownership of mill site, inAdverse possession, to ripen into title, struction which singled out intermediate conmust be such as would have exposed possessor veyance of mill site in which dam was not to action because of what was done by him at mentioned, saying that it conveyed no greater any and all times during his 20 years' posses- interest than grantor had, held misleading as sion.
disparagement of such document. 10. Pleading en 406(5)-General averment of 19. Trial em 244 (3) -Instruction held erroneadverse possession held good in absence of ous as singling out evidence and disparagmotion to make specific.
ing it. In absence of motion to make more specific, An instruction on the effect of a particular general averment that continuously for 42 deed on the issue of abandonment of a water years plaintiff had actual, open, notorious, ex- right held erroneous as singling it out and disclusive, and adverse possession of land in which paraging it. defendants claimed right of flowage free from 20. Navigable waters om 1(2)-Legislative acts defendants' use and right sufficiently pleaded title by adverse possession to withstand de
held not to make river navigable stream so murrer, and was not limited in its scope by
that bed did not vest in riparian owners. averment that plaintiff had farmed land.
Legislative acts, declaring Driftwood fork
of White river to be a public highway, held not 11. Pleading em 367(1)-Remedy to confine ef- to make it such navigable stream at dam site
fect of general averments to particular facts involved as that title to river bed never vested also stated is by motion to make specific. in landowners on either side to whom measured
Remedy to confine effect of general aver area outside meander lines was conveyed by ments to particular facts also stated is by mo- United States.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
Appeal from Circuit Court, Jackson County; Jas. A. Cox, Judge.
Action by Charles Lebline against the Seymour Water Company. Judgment for plaintiff, and defendant appeals. Transferred from the Appellate Court under section 1394, Burns' Ann. St. 1914 (section 10, c. 247, Acts 1901, p. 567). Reversed, with directions.
Superseding opinion of 138 N. E. 787.
Montgomery & Montgomery, of Seymour, for appellant. Oren O. Swails, of Seymour, for appellee.
EWBANK, C. J. Appellee, the plaintiff below, recovered a verdict and judgment against appellant for $2,011.38, as damages for the construction of a dam in the “Driftwood” or east fork of White river, at Itockford, near Seymour, Ind., by which the river was caused to overflow some of his land. Appellant's demurrers to the complaint, and to each of several paragraphs of reply, were overruled, as was also its motion for a new trial, and appellant excepted to each ruling, and has challenged each of them by a proper assignment of errors.
The complaint was filed January 10, 1921. It alleged in very general terms that plaintiff was the owner of a certain described tract of 77 acres of farm land that bordered on White river, a short distance above the dam complained of ; that in 1917 the defendant built and had since maintained a permanent dam of stone, gravel, and concrete, with wing walls, by which it had permanently obstructed the flow of water in the river, and had caused the level of the water in that part of the river flowing across plaintiff's land to be raised; that by reason thereof, when the river was swollen by rains so as to overflow plaintiff's lands, the water was delayed in running off, and was caused to stand on plaintiff's fields, which were thereby made unfit for cultivation, and unsalable, to plaintiff's damage in the sum of $9,000; that the erection and maintenance of said dam and obstructions was wrongful, unlawful, and without right, and without the consent, leave, or license of plaintiff, and without the tender or payment of his damageS.
 The only supposed defect in this complaint suggested by appellant's brief is that it fails to state the exact character of plaintiff's title, and does not say anything about what may have been done by his predecessors in title in the Imatter of granting the right to flow his lands by a dam, or submitting to such flowage for a long series of years. But, in the absence of a motion to make the complaint more specific, we think the general allegations that he was the owner, and that the flow of the water had been obstructed unlawfully, and without right, to his damage as stated, were suslicient to withstand the demurrer.
 Overruling a motion to require appellant to file an abstract of his title is complained of. Such a motion is addressed to the sound legal discretion of the trial court, and overruling it could only be cause for reversing the judgment if it were shown that such discretion had been abused to appellant's prejudice. Phoenix Ins. Co. v. Rowe, 117 Ind. 202, 204, 20 N. E. 122.  It does not appear that there was any doubt as to the source of plaintiff's title, nor that appellant was ignorant of any facts which would have been shown by an abstract. What meander lines were run to make that section a “fractional section,” containing less than 640 acres, when the land was originally surveyed by the United States government preparatory to selling it to settlers, even if shown to be pertinent as having relation to any part of plaintiff's farm, would not be shown by an abstract of title. We are not to be understood as holding that the complaint for damages tendered an issue as to plaintiff's title, or that it did not do so. But, even if it did, no available error is shown to have been committed by overruling the motion that he be required to furnish an abstract.  Appellant filed three paragraphs of answer, to which the plaintiff replied by a general denial, and also by certain affirmative pleas, to which appellant filed demurrers that were overruled. Counsel point out that certain of these paragraphs of affirmative reply were “argumentative denials,” and pleaded only facts in denial of whāt was alleged in the answers, of which proof could be made under the issue formed by the reply of denial, so that a demurrer might have been sustained to each of them without being cause for a reversal. Penn Mut. Life Ins. Co. v. Norcross, 163 Ind. 379, 393, 72 N. E. 132; Nashville, etc., R. Co. v. Johnson, 60 Ind. App. 416, 422, 106 N. E. 1087, 109 N. E. 912. But an “argumentative denial” is still a denial of what is alleged in the pleading to which it is addressed, and overruling a demurrer to it is not error, even though sustaining the demurrer would have been harmless. Heed v. Gummere (Ind. Sup.) 136 N. E. 5. Appellant's fourth paragraph of answer pleaded facts to the effect: That in 1850 and long before then one Fischli owned the lands now owned by plaintiff, and also the lands now owned by appellant, with a mill and dam thereon, located where appellant's power house and dam are now situated. That he died the owner thereof. That in 1856 and 1857 his heirs conveyed to appellant's remote grantor 17 acres of his said lands on which the mill and dam were situated, “together with the mill and all machinery, tools and implements appurtenant thereto, and the dwelling houses, stables, and other improvements situated on and belonging to said mill property; also all such