Wohadlo v. Farry

61 N.E.2d 188, 115 Ind. App. 695, 1945 Ind. App. LEXIS 168

• Court: Indiana Court of Appeals
• Decided: May 28, 1945
• Docket: No. 17,356.
• Status: Published

Opinion

Royse, C. J.

— Appellant brought this action to set aside the judgment and sale in a partition action in which she had been a co-plaintiff. The case of Wohadlo et al. v. Farry et al. (1943), 221 Ind. 219, 46 N. E. (2d) 489, involved the same parties and the same subject-matter. In that ease the Supreme Court affirmed the judgment of the Lake Superior Court in striking out appellants’ complaint. In referring to the complaint there under consideration the court said: “The facts alleged show no fraud and nothing unconscionable in the proceedings or in the judgment itself.” Appellant, erroneously interpreting that statement as a suggestion as to how she might continue the litigation, filed a complaint in which she unsuccessfully attempted to charge the appellees herein with fraud in the partition suit. To this complaint appellee Szczygiel filed a demurrer, the other appellees filing a motion to strike out. The demurrer and motion to strike out were sustained. Thereupon the appellant filed what she termed a new amended com* plaint which was not materially different from the original complaint herein. It contained no charges of fraud against the parties hereto. Appellees moved the court to strike out the new amended complaint on the grounds it was a sham and frivolous pleading. The trial court sustained this motion and the record discloses appellant refused to plead further. It must be concluded therefore she had stated all the facts she had to sustáin an action against appellees.

There must be an end to litigation. The Lake Superior Court properly sustained the motion to strike out the new amended complaint and its judgment is therefore affirmed.

Note. — Reported in 61 N. E. (2d) 188.