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93 Ind. 423

Richardson v. Pate

Indiana Supreme Court

Decided November 27, 1883

Indiana Supreme Court · decided 1883-11-27

<p>Married Woman. — Infancy.—Disaffirmance of Deed. — Estoppel.—Limitations. ■ — In 1859 an infant married woman aged seventeen years joined her husband in the execution of a deed conveying his lands. The husband died in 1880, and nineteen months thereafter she gave notice of disaffirmance to the grantees of the husband’s vendee, and four months later sued them for partition, alleging the above facts in her complaint. Answer that the conveyance was for full value, and that the defendants were purchasers for full value, without knowledge of the plaintiff’s claim ; that her husband, with the proceeds of his sale, bought other lands near those in controversy, and resided thereon with the plaintiff from 1859 until his death, since which she has resided thereon, and took a third thereof as widow; that with her knowledge defendants made valuable improvements, and for twenty-three years paid all taxes, yet she failed to disaffirm or give notice of her intention until March, 1882.</p> <p>Held, that the auswer was bad on demurrer.</p> <p>Held, also, that the widow could disaffirm at any time after her husband’s death within the period that would bar her suit.</p> <p>Held, also, that until her husband’s death the statute of limitations did not begin to run against her.</p> <p>Held, also, that the facts pleaded did not constitute an estoppel.</p> <p>.Appeal. — Notice of Attorney. — Service of notice of an appeal to the Su- ■ preme Court under section 610, R. S. 1881, may be made on the attorney of record, though he has been discharged, unless the appellant had notice of such discharge, and where there are two persons for whom the attorney appeared below, his acknowledgment of notice signed as attorney for one only is sufficient as to both.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1883-11-27

How this case has been cited

Cited by 15 later decisions — most recently April 1924

1 federal appellate · 14 state decisions

6018831890190019101920decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1On Petition for a Rehearing.

Hammond, J.

¶2— The appellees’ grounds for a rehearing, as stated in their petition, are as follows:

“ 1. Because this court had, and has, no jurisdiction to render judgment of reversal;
“ 2. Because the judgment of reversal is not based on correct principles of law or equity, and is erroneous.”

¶3The record shows that the final judgment was rendered in the court below on January 19th, 1883, and that the appellant then prayed an appeal to the Supreme Court, which was •granted. On February 12th, 1883, the appellant served notice in writing on the clerk below and the attorney who appeared of record for the appellees in that court, to the effect that the appellant appealed from the judgment in said cause to the Supreme Court. Service of the notice was acknowledged by the clerk and by the appellees’ said attorney, the latter writing after his name the words “Att’y for def’t- Pate.” The transcript of the record was filed in this court on February 23d, 1883. The case, on May 29th, ,1883, was submitted on the appellees’ default.

Filed Feb. 1, 1884.

¶4In support of the petition for a rehearing, and also with the view of having the appeal dismissed, the appellee.Stewart files his affidavit, stating that after the rendition of the judgment below, and before the appeal, he had discharged his attorney from further service in the case on account of an agreement of compromise with the appellant. The affidavit does not state that the appellant had notice of the discharge of the attorney, nor that the affiant did not have knowledge of the service of notice on the attorney, or of the filing of the transcript in this court, or the action here taken on the same before the decision herein was made.

¶5We think the appeal was properly taken, and that this court had complete jurisdiction. One of the methods of appealing 'to this court, after the close of the term at which a judgment is rendered in the trial court, is by serving a notice in writing on the adverse party or his attorney, and on the clerk of the court in which the proceedings were had, stating the appeal from the judgment, or some specific part thereof. Section 640, R. S. 1881. Service on the attorney who appeared of record is as good as upon the party himself, in the absence of a showing that the party proposing to appeal had notice of the attorney’s discharge. The fact that the attorney accepted notice as but for one of the parties can make no difference; the service of notice on him is the material point, and when made is good as against all the appellees for whom lie appeared of record in the trial court.

¶6As to the second cause for a rehearing, we will say that a re-examination of the questions considered in the principal opinion confirms us in the correctness of the conclusions therein reached.

¶7Petition for a rehearing and. motion for dismissal of appeal overruled.

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