Opinion
No. 17,356.
Filed May 28, 1945.
PLEADING — Motion to Strike — Grounds — Sham and Frivolous Pleading. — Where, after a judgment striking out a complaint to set aside a judgment and sale in partition had been affirmed by the Supreme Court, the opinion stating that the facts alleged had showed no fraud, plaintiff filed a complaint in which she unsuccessfully attempted to charge fraud, to which a demurrer and motion to strike were filed and sustained by the court, and thereupon plaintiff filed what was termed a new amended complaint which was not materially different from the original complaint and contained no charges of fraud, the court properly sustained a motion to strike such new amended complaint on the grounds that it was a sham and frivolous pleading.
From the Lake Superior Court, Room No. 1; Joseph V. Stodola, Judge.
Action by Mary Wohadlo against George Farry and others to set aside a judgment and sale in a partition action in which she had been a co-plaintiff. From a judgment striking out the amended complaint, plaintiff appealed.
Affirmed. By the court in banc.
Fred Barnett, of Hammond, for appellant.
Alex A. Bocknowski, James J. Niemiec and Joseph J. Wasko, all of East Chicago, for appellees.
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 case 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 complaint 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 sustain 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.