Waltz v. Borroway

Ray, J. This action was commenced in the Bartholomew Circuit Court by the appellees for the partition of real estate lying in Brown and Bartholomew counties. The complaint alleged that Richards claimed some interest in the premises, the nature of which was unknown to .the complainants, and he was made a j)arty defendant for the purpose of settling hi's interest and quieting the title of the complainants. The appellees claimed title to the premises as heirs at law of their father, who died seized in fee. Richards set up, in the second paragraph of his answer, title in himself to the land in Brown county, under a proceeding for partition instituted in that county. The record of the proceedings filed with said paragraph showed that, after the usual steps had been taken, the land had been sold by a commissioner appointed. by the court, and purchased by Richards. The proceedings in Brown county were instituted for the partition of the land in that county only, and [381] one of the heirs, who was a plaintiff in the court below in this suit, was not made a party plaintiff or defendant in said proceedings. A demurrer was filed to the second paragraph of the answer, which was alleged to be defective for three reasons: 1st. Because the notice of the pendency of the proceedings in Brown county was insufficient. 2d. Because the parties in the present suit were not the same as they were in the suit in Broion county. 3d. Because the subject matter of this suit was not the same as in the suit in Brown county, the land in Bartholomew not being described in the suit in Broion. The demurrer was sustained by the court below and upon that ruling error is assigned. The notice in the proceedings in Brown county was as follows, viz: “ State op Indiana, Brown County.” “Notice is hereby given that Henry Weaver and Sarah Ann Weaver, heirs of David Waltz, deceased, late of said county, have filed their petition for partition of the real estate of said decedent in said county, and that said petition will be heard at the next term of the Court of Common Pleas of said county. Dated May 10th, 1856.” (signed,) “Vm. ~W. Mason, Clerk C. C. P. Brown County.” The statute provides that on the filing of a petition for the partition of lands, if any of the defendants are nonresidents of the State, and such non residence be shown by affidavit, the clerk shall cause notice of the pendency of such petition to be given for three weeks successively in some newspaper printed in said county. The statute makes the publication a substitute for the summons, and the summons would contain the names of the parties to be served. The question then, is whether the omission in the notice of the names would render the action of the court void, or only erroneous, the case being within the scope of the statutes authorizing publication? In the case of Hynes v. Oldham, 3 Monroe R. 266, publication had been made, and the case was within the scope of the statute authorizing publication. The objection was that it did not appear that an [382] affidavit had been filed by the complainant that the particular names of the heirs were unknown to him before making the order of publication. It was decided that, though the omission might have been a cause of revision, or of reversal upon appeal, the decree was not therefore void. Mr. Justice Baldwin, in delivering the opinion of the Supreme Court of the United States in the ease of Hollingsworth v. Barbour et al., 4 Peters 466, uses this language: “Where there has been personal service of irregular or erroneous process, the party has notice in part, and may, if he will, appear and object to or waive the irregularity.” Now, if the notice given in this suit had been served upon any of the heirs of David Waltz, deceased, late of the county of Brown, such hems would have had actual notice that a petition for partition of the real estate of their ancestor in the county of Brown had been filed by Henry and Sarah Weaver, two of the other heirs, and that the petition would be heard at the next term of the Court of Common Pleas of said county. Upon their failure to appear, after personal service of such notice, the subsequent proceedings of the court, being a court of superior jurisdiction, would not have been void, though perhaps erroneous. Now, where publication has been authorized, the presumption is conclusive that it has been as effectual as service would have been, and if there be sufficient in the notice to inform the party of the nature of the proceedings, the interest he has in it, and the court where it will be heard, we may perhaps regard the subsequent proceedings of 'the court of superior jurisdiction in which the cause is tried as erroneous, but we cannot treat them as void. The law is well established, “that, unless the acts of superior tribunals are void on their face, they are necessarily and essentially valid, without proof or averment of their validity.”' 1 Smith’s Leading Cases, 823, 5th Am. ed. And “ That where the record discloses nothing upon the point, jurisdiction of the person and-of the subject matter will, the contrary not being proved, be presumed, in cases’ [383] of domestic judgments of courts of general jurisdiction, where they come collaterally in question.” Horner v. The Bank, infra, and authorities cited. The court, in the case in judgment, having jurisdiction' of the subject matter, and having taken jurisdiction of the person of the heirs, and nothing appearing in the record from which we must find an absolute want of jurisdiction of their persons, we cannot, in a collateral proceeding, hold the decree of the court void. In the case of Thompson v. Hare et al., 8 Blackf., 336, where the administrator of an estate, during the term of court, filed an inventory and petition for the sale of real estate for the payment of debts, and the record recited that “the court, oh motion, appointed a guardian ad litem for the heirs of the intestate, they being infants,” it was held “that the order of sale was erroneous, but that it was not a nullity, and that the purchase under it was valid.” In the case of Horner v. The State Bank, 1 Ind. 132, decided a year later, this language is used: “The infants might have been in court in person at the time of the appointment of the guardian ad litem, if they were that was sufficient notice, and had the record simply recited that ‘ on motion,’ without? specifying on whose motion, a guardian ad litem was appointed, we have already decided that we would presume they were personally in court.” Thompson v. Hare, supra. The record in this case recites that, “Frederick T. Butler is appointed guardian ad litem for the minor heirs herein, and he comes now and files his answer.” This recital would indicate that the court, of its own motion, made the appointment, and the presumption that the infants were present in court is to be indulged in suppoi’t of the ruling. As to the objection taken that the answer is not sufficient because the parties to the suit in Brown county are not the same as those in the present suit, the answer is that the proceedings in Brown county are only relied upon as a defense to the title of the heirs who were parties to that [384] proceeding, and as to them it is conclusive. It would be unjust to hold that heirs might come into court and have an order of sale in partition and receive the proceeds, and afterward deny the validity of the proceedings between them and the purchaser, because they had not brought all the heirs into court. The failure to bring all the heirs into court resulted in the parties who were in court receiving more than they were entitled to, and in the purchaser, although paying for a perfect title, only receiving the ^interests of part of the heirs. The objection that the subject matter of the two suits is not the same, because the proceedings in Brown county did not include also the land in Bartholomew county, is not well taken, The proceedings, so far as Richards is interested, embrace the same subject matter. The complaint only charges that he claims an interest in the land in Brown county, and he answers only as to that interest. The demurrer should have been overruled. J. JE. McDonald,, A. L. Roaehe and D. Sheets, for appellants. R. Hill, for appellees. The judgment is reversed, with costs, and the cause remanded for further proceedings in accordance with this opinion.