Cosby v. Powers

Hackney, J. The appellants sued to set aside a decree of foreclosure and a sale of real estate under such decree. It was alleged that the complaint in the foreclosure proceeding was in two paragraphs. The first paragraph is not set out in the complaint before us, and its only alleged defect was in failing to name, in the body thereof, these appellants, though it does appear that they were named in the title of the action, as stated in the introductory portion or caption. The second paragraph described the land only by reference to the first paragraph, and alleged an adverse claim, by the appellants, of the title to the land, and asked that they appear and answer as to their interest. There were no allegations with reference to the mortgage. The omission from the first paragraph was not fatal. We can not say that there were not allegations sufficient to identify the appellants by reference to them as their names were so stated in the title of the action. If we should go to the extent of holding that the title of the action, so stated, was not a necessary part of the complaint, we could not say that such references could not be made to it as to identify the parties complained of. In this objection to the pleading upon which the foreclosure decree was based, the appellants deny that there were sufficient facts pleaded to invoke jurisdiction of the [696] parties, but since we must indulge every presumption in favor of the pleading, which is not overthrown by the "allegations of the attacking party, it will be taken as true that the appellants were sufficiently identified and connected by the allegations with the cause of action. If, therefore, the first paragraph is presumed to have been sufficient to support the decree, it will be unnecessary to consider the alleged weaknesses of the second paragraph. The complaint before us alleges that with the complaint in the foreclosure suit was deposited, but not marked filed, an affidavit of the nonresidence of the appellants; that, without an order of the court, the clerk made publication in term time, of a notice of the non-residence of the appellants, and therein wholly failed to state the character of the action in which appellants were thus notified to appear; and that the appellants were, in fact, residents at that time of this State. It is further alleged that one of the appellants was notified also by summons, but there is no allegation that the only service upon the other appellants was by said publication; in other words, it does not appear that they were not served by summons also. When it is remembered that this proceeding is a collateral attack upon the decree, and when it is remembered that the decree is not presented for inspection, it must be presumed that the court found that the service of process was sufficient, and it is a familiar rule that where there is some notice, and it has been found sufficient, however erroneous the finding, the only remedy is by direct proceeding. Essig v. Lower, 120 Ind. 239. It is still further alleged that the court appointed a guardian ad litem for three of the appellants, who were minors, and said guardian filed an answer in denial, and that thereupon the court defaulted said minors and rendered [697] a decree against them without evidence. This objection is not of such force as to defeat the jurisdiction of the court, it was but an irregularity not rendering the decree void, and, therefore, not the basis of a collateral attack. McBride v. State, 130 Ind. 525. A fatal objection to most, if not all, of the questions urged by the appellants, is in the fact that they do not bring forward the decree or allege its findings and conclusions. If we are to presume in favor of the jurisdiction and findings of the court whose decree is attacked collaterally, and of this presumption there is no doubt, we will treat the decree as having found the existence of proper notice, and the regularity of all proceedings. There is no error in the ruling of the circuit court in. sustaining the appellee’s demurrer to the appellants, complaint; and, no other error being assigned, the judgment is affirmed. Filed May 10, 1894.