Wilcox v. Monday

Woods, J. Judgment of partition by default in an action commenced in term time. It is claimed that the service of the summons in such a case by copy left at the residence of the party is not authorized. The contrary was decided in Dunkle v. Elston, 71 Ind. 585. See, also, Hite v. Fisher, 76 Ind. 231. The record shows that the oath was administered to two of the commissioners appointed to make the partition by the third, who was the county surveyor. There was no error in this. See section 10 of act concerning county surveyors, 1 R. S. 1876, p. 866; R. S. 1881, section 5957. The court apportioned the costs of the partition among the parties according to their respective interests. This the statute leaves to the discretion of the court. 2 G. & H., p. 366, section 28. It may be remarked that the appellants, having, after due service of process, permitted judgment to go by default, and having saved no exception to any part of the proceedings, are not in a position to make any question which does not go to the jurisdiction of the court, except that the complaint does not state facts sufficient. Judgment affirmed, with costs.