Guy v. Pierson and Others. Pierson, Johnson, the administrator, and others, were made defendants. The defendants filed a joint demurrer to the complaint, on the ground, amongst other things, that it did not state facts sufficient, &c. The demurrer was sustained, and exception taken. In order to determine the correctness of the ruling on the demurrer, it is necessary to examine the proceedings of the Probate Court, and ascertain whether the objection made, viz: that the Court had no jurisdiction of the parties, is well taken. The petition or application for an order for the sale of the land does not mention the names of the heirs of the deceased, nor does it in any manner allude to them. Upon the application being filed, the record proceeds as follows: "And the matters being considered, the prayer of said administrator is granted, and it is ordered that Abraham Lafever be, and he is, hereby appointed a guardian ad litem for the minor heirs of said Laban Guy, deceased; it is therefore ordered that said Abraham Lafever, guardian ad litem, and Nancey E. Guy, the widow of said decedent, be cited to appear in this Court on the first day of the next term, and show cause, if any they have, why said real estate shall not be sold and made assets for the discharge of the debts against said decedent's estate." At the next term the record states, that "whereas James Johnson, the administrator of the estate of Laban Guy, deceased, at the last term of the Court, filed his memorial, setting forth that the personal estate of said decedent was insufficient for the payment of his debts, and showing sundry messuages and tenements, which were the real estate of said decedent at the time of his death, and praying an order of the Court for the sale of the real estate, and the heirs of said decedent having been duly notified herein, and no cause shown to the contrary, and Abraham Lafever, the guardian Guy v. Pierson and Others. ad litem for the minor heirs of the decedent now comes and files his answer herein in the words and figures, following, to-wit: (here follows the answer of the guardian ad litem,) admitting the insufficiency of the personal estate of the decedent to pay the debts against said estate, and that he knows of no reason why the said real estate should not be sold and made assets for the purpose of discharging the said debts: it is ordered," &c. It will be noticed that Lafever was appointed guardian ad litem for the minor heirs immediately on the filing of the petition, and, it is to be inferred, in his absence; for it was ordered that he and the widow be cited to show cause, at the next term, why the land should not be sold. At the next term, when the land was ordered to be sold, the record recites that the heirs had been duly notified therein. The record contains no process or notification whatever. The natural interpretation of this record is, that the heirs had been notified by citing the guardian ad litem, as previously ordered by the Court. If this was the only notification given the heirs, the Court had no jurisdiction over them, and, as to them, the proceeding was a nullity. Doe v. Anderson, 5 Ind. 33. But whether the above be the true interpretation of the record or not, there is another fatal defect in the proceedings which renders them void as against the plaintiff. The record nowhere names the heirs of the deceased. They are nowhere mentioned, except by the general designation, "heirs." There is no such thing as an adversary proceeding in Court against a party without naming him, unless it be in special cases where the statute authorizes it. Suppose, in this case, process had issued to the sheriff, directing him to notify "the heirs" of the decedent; upon whom would he have served it? He undoubtedly would have served it upon those whom he supposed to be heirs; but it was not for him to determine Guy v. Pierson and Others. who were or who were not heirs. If process was served upon individuals by name, as such heirs, the record should have disclosed such names. The record not disclosing the names of the heirs, there is no foundation to presume that the Court had acquired jurisdiction over any person, except the widow, who was named. Babbitt v. Doe, 4 Ind. 355. The persons who were the heirs of the deceased can not be regarded as parties to the proceeding in the Probate Court, and as to them it was a nullity. For the reason that the plaintiff herein was not a party to that proceeding, he can not maintain a complaint to review it. Davidson v. Lindsey, 16 Ind. 186. Where a statute authorizes a proceeding against unknown heirs, without naming them, as in section 40 of the code, such heirs may undoubtedly maintain proceedings for a review, because they are then parties; but such was not the case here. And for the reason that the plaintiff was not a party to the proceeding in the Probate Court, he is not bound by that proceeding, and his title to his share of his father's estate has not passed from him. The complaint, leaving out of view the prayer for a review of the proceedings of the Probate Court, states a good cause of action against Pierson; it shows that the plaintiff is entitled to recover his share of the land, and that the defendant is in possession. There is also a sufficient prayer for a recovery of the possession, &c. The demurrer was filed by all the defendants; and not being well taken as to one of them-Pierson-it should have been overruled. Per Curiam.-The judgment below is reversed, with costs. William R. Harrison, Samuel H. Buskirk, Joseph E. McDonald and A. L. Roache, for the appellant. Hester & Phelps, for the appellees. DeForest v. The State. DEFOREST v. THE STATE. CRIMINAL LAW AND PRACTICE-EVIDENCE-In justifying a homicide in defence of person, property, &c., it is competent for the defendant to give in evidence any facts tending to show the character of the attack he resisted, the intention with which it was made, and that he had reasonable grounds to believe it was necessary to do what he did in resisting it, and to this end he may show the relations that had existed between himself and the deceased for an indefinite period before the killing. Self-Defence.—If a man, on returning to his own house find himself barred out and excluded therefrom by another, and then repeatedly demands, and is denied admission, he has a legal right to break in the door; and if he encounter resistance on thus entering, and be first stricken by the unlawful occupant with a deadly weapon, and then, meeting force with force, he take the life of such occupant, such killing would seem to be excusable homicide, committed in self-defence. APPEAL from the Marion Circuit Court. WORDEN, J.-The appellant was indicted for the murder, in the second degree, of John Burrows. Conviction of manslaughter, and sentence of imprisonment in the State's prison for thirteen years. The following are the facts, as they are set out in a bill of exceptions: The defendant was the occupant of a house in the city of Indianapolis. This house consisted of a front room, back of which were two bed-rooms, with doors opening into the front room; also a porch, with a door opening into the front room, and a bed-room at one end of the porch, with a door opening from the porch. This bed-room did not communicate with other parts of the house, except by way of the porch. The defendant had let to a Mrs. Bratton the front room and one of the bed-rooms back of it, reserving to himself, however, DeForest v. The State. the right of ingress and egress to and from the other bedrooms through the front room. The defendant's wife slept in the bed-room to which the right of way was thus reserved. Burrows, the deceased, usually slept in the bed-room at the end of the porch, and the defendant slept sometimes with his wife and sometimes with the deceased. On the day before the homicide was committed, a niece of Mrs. DeForest came there on a visit. The defendant ate his supper and went down town. It was then agreed, says the bill of exceptions, that he should sleep with the deceased, in the bed-room at the end of the porch, and that the niece and Mrs. DeForest should sleep together in the other bed-room. After the defendant went down town, as above mentioned, Mrs. Bratton invited the deceased to sleep in the front room that night, as she says she was afraid of the old man-the defendant. This was the first time such an invitation had been extended to the deceased. The parties in the house, viz: Mrs. Bratton and two sisters-in-law, the deceased, Mrs. DeForest and her niece, retired to bed, having taken the axes into the house, and hidden them under the bed, and having fastened the door to keep the defendant out. The defendant returned about 11 o'clock, or after, and, finding the door fastened, asked those inside to open it; they refused; he asked several times; then went away to one Dan. Man's; came back, and said that Man told him to break open the door; the parties inside still refused to open it; he then went into the cellar and got an ax, which had been forgotten when the axes were gathered up and taken into the house and hidden, as above mentioned, and with the ax he beat down the door; the door being beaten down, the defendant encountered the deceased, who had an ax handle in his hand, and the evidence very strongly tends to show that the deceased first struck the defendant upon or about the head with it. The defendant |