Young v. Dickey. "Wherefore plaintiff prays judgment that said mortgage be reformed and corrected, so as to include the real estate first in this paragraph described, and that plaintiff have judgment for two hundred dollars, and that said mortgage be foreclosed, and said real estate, or so much thereof as may be necessary, be sold to pay and satisfy said judgment, as other lands are sold on execution, and for all other proper relief," etc. If the mortgage, as executed, embraced a portion of the land intended to be mortgaged, it might, probably, be foreclosed upon that without reformation, the heirs of the deceased mortgagor being first made parties defendants. Conklin v. Bowman, 11 Ind. 254. But, we think, a prima facie case is made in the complaint for reformation of the mortgage. We think, there should be an answer. See Halstead v. The Board, etc., 56 Ind. 363; Mason v. Moulden, 58 Ind. 1; Busenbarke v. Ramey, 53 Ind. 499; Flanders v. O'Brien, 46 Ind. 284. The judgment is reversed, and the cause remanded for further proceedings, in accordance with this opinion. YOUNG v. DICKEY. INTEREST ON OPEN ACCOUNT.-Interest on an open account may, in a proper case, be allowed. PRACTICE.- Withdrawal of Appearance Withdraws Pleading.-Default.— Process.-Record.-Supreme Court.-Where a defendant who has been served with process withdraws his appearance, he thereby withdraws his answer also, and should be defaulted; and in such case, on appeal to the Supreme Court. the record must show the issue and service of process upon him, or the judgment against him will be reversed. SAME.-Appearance Without Process.-Discretion of Court.-It is within the discretion of the court, on objection by the plaintiff, to refuse leave to a defendant, who has appeared without service of process, to withdraw his appearance. Young v. Dickey. From the Tipton Circuit Court. J. Green, D. Waugh, J. Waugh and J. W. Robinson, for appellant. BIDDLE, J.-Complaint in the usual form of a common count, with a bill of particulars, by the appellee, against the appellant. The record shows the following entry: "Come now the parties by counsel, and the attorneys for defendant now withdraw his appearance, and, on motion, the defendant is three times called and comes not, but herein wholly makes default." The court then proceeded to try the case, and made the following finding: "And the court, having seen and heard all the evidence adduced by the plaintiff, finds that there is due him on his complaint, from the defendant herein, the sum of one thousand seven hundred and twenty-five dollars and twenty-seven cents; and the court does further find, that, on the defendant's answer to the plaintiff's complaint, there is due said defendant, from the plaintiff, the following, to wit:" (here follow several items, amounting in all to one thousand and eighty-five dollars and forty-five cents); "and that the plaintiff herein have judgment against the defendant for the sum of six hundred and thirty-nine dollars and eighty-two cents, the principal and residue thereof; and the court further finds, that the plaintiff should recover of the defendant the further sum of two hundred and fortynine dollars and forty-two cents, as interest on said principal, from the 16th day of August, 1869, up to the present time, the same being at the rate of six per cent. per annum." Judgment accordingly, for eight hundred and eightynine dollars and twenty-four cents. The dates of the items in this bill of particulars run from June 5th, 1867, to August 15th, 1869 from which it The State, ex rel. the Attorney General, v. Meyer. appears that the court allowed interest on the account, commencing twelve months after the date of the last item. There was no error in allowing interest. The record does not show the service of a summons on the appellant, nor the officer's return thereon. We think this is a defect in the case. When the appellant withdrew his appearance, he necessarily withdrew his answer with it; for, if the answer remained in the record, the appearance was in also. That being the case, the record should show a default of the appellant, and should contain the summons, and the return of service thereon; otherwise the judgment is erroneous. Coffin v. The Evansville and Crawfordsville R. R. Co., 7 Ind. 413; Carver v. Williams, 10 Ind. 267; Smith v. Foster, 59 Ind. 595. Perhaps, when a defendant appears to an action without process and service, the court would not allow him to withdraw his appearance over the objection of the plaintiff, or, at least, in such a case, it would be within the judicial discretion of the court to allow, or not to allow, his withdrawal, according to the merits of the question. The New Albany and Salem R. R. Co. v. Combs, 13 Ind. 490. As the record stands, there is no appearance in, and no proof of service of process; the judgment is therefore erroneous, and is reversed, at the costs of the appellee. THE STATE, EX REL. THE ATTORNEY GENERAL, v. MEYER.. REAL ESTATE, ACTION TO RECOVER.-Information by State on Relation of Attorney General.- Lands Escheated to State for want of Heirs.- Under section 9 of the act of March 10th, 1873, prescribing the duties of the attorney general, 1 R. S. 1876, p. 151, he may file an information in the na-ture of a quo warranto, in the name of the State, on his own relation, VOL. LXIII.—3 The State, ex rel. the Attorney General, v. Meyer.. to recover the possession of real estate which has escheated to the State, for the use of the common school fund, for want of heirs or kindred entitled to inherit. SAME.-Adoption Under Laws of Foreign State.-Constitutional Law.-Common School Fund. The act of December 21st, 1865, 1 R. S. 1876, p. 417, enabling children adopted under the laws of any other state of the United States to take and hold real estate in this State, is not in conflict with section 2 of article 8 of the constitution of this State, 1 R. S. 1876, p. 38, prescribing what shall constitute the common school fund. SAME. Under said section 2 of article 8 of the constitution, it is "the fund to be derived from the sale of" escheated real estate, and not such real estate itself, which becomes a part of the common school fund. SAME.-Defence.-Adopted Child.-Where an information has been filed in the name of the State, on the relation of the Attorney General, to recover the possession of real estate alleged to have escheated to the State for want of heirs or kindred entitled to the inheritance, it is sufficient to answer, alleging title through one adopted by the intestate, under the laws of another state of the United States, and the filing of the record of adoption, in this State, in accordance with said act of December 21st, 1865. SAME.-Evidence.-General Denial.-All defences to such proceeding are admissible in evidence under the general denial. From the Knox Circuit Court. W. H. De Wolf, G. G. Reily, W. C. Johnson and S. N. Chambers, for the State. F. W. Viehe and R. G. Evans, for appellee. Howк, C. J.-This was an information, in the nature of a quo warranto, filed by the attorney general of this State, as the relator of the appellant, in the circuit court of Knox county, against the appellee, as defendant, for the recovery of certain real estate, particularly described, in said county, which real estate, it was alleged, had escheated to the State of Indiana, for the use and benefit of its common school fund. In said information it was alleged, in substance, that, on the 14th day of May, 1861, one Margaretta Ormand became the owner, in fee-simple, of said real estate, by purchase, of the value of, to wit, ten thousand dollars; that afterward, on the 4th day of December, 1863, the said Mar The State, ex rel. the Attorney General, v. Meyer. day of garetta Ormand departed this life intestate, and leaving no heirs capable of inheriting said real estate; that afterward, on the 187-, the appellee entered into the possession of said real estate, and had ever since held possession thereof without right; and that, by means of the premises, the said real estate had escheated to the State of Indiana, for the benefit of its common school fund. Wherefore, etc. To this information, the appellee answered in three paragraphs, the first being a general denial, and each of the other two paragraphs setting up an affirmative defence. The appellant demurred to each of the second and third paragraphs of the appellee's answer, upon the ground that it did not state facts sufficient to constitute a defence to said information, which demurrers were overruled by the court, and to these decisions the appellant excepted. The appellant declined to reply to the second and third paragraphs of said answer; and thereupon the court rendered judgment on said demurrer in favor of the appellee, from which judgment this appeal is now here prosecuted. In this court the appellant has assigned, as error, the decision of the circuit court, in overruling the demurrers to the second and third paragraphs of the appellee's answer. In the second paragraph of his answer, the appellee alleged, in substance, that, by an act of the Legislature of the State of Pennsylvania, approved May 4th, 1855, and still in force, it was provided, that it should be lawful for any person desirous of adopting any child as his or her heir, or as one of his or her heirs, to present his or her petition to such court in the county where he or she might be resident, declaring such desire, and that he or she would perform all the duties of a parent to such child; and such court, if satisfied that the welfare of such child would be promoted by such adoption, might, with the consent of the |