Board of Com'rs of Delaware County v. Briggs, No. 1--1074A164

• Docket Nº: No. 1--1074A164
• Citation: 167 Ind.App. 96, 340 N.E.2d 373
• Case Date: January 20, 1976
• Court: Court of Appeals of Indiana

Page 373

340 N.E.2d 373 167 Ind.App. 96 BOARD OF COMMISSIONERS OF DELAWARE COUNTY, Appellant (Defendant below),
v.
Bruce BRIGGS, Appellee (Plaintiff below). No. 1--1074A164. Court of Appeals of Indiana, First District. Jan. 20, 1976.

[167 Ind.App. 137]

Page 374

Albert C. Harker, Thomas R. Hunt, Kiley, Osborn, Kiley, Harker & Rogers, Marion, for appellant.

W. Scott Montross, Townsend, Hovde & Townsend, Indianapolis, for appellee.

ON PETITION FOR REHEARING

LOWDERMILK, Judge.

Defendant-appellant Board of Commissioners of Delaware County (County) filed a petition for rehearing asking us to review our decision in the above entitled cause, which has been reported at 337 N.E.2d 852. The bulk of the petition simply reiterates arguments that were disposed of in our original opinion, and we do not deem it necessary to discuss them further.

[167 Ind.App. 138] For the benefit of the County, we would point out that we are at a loss to see any real distinction between the fact situation in the case at bar and the facts of Campbell v. State (1972), 259 Ind. 55, 284 N.E.2d 733. The County continues to insist that a public duty was involved in this case, but the Campbell court found a private duty in that case on a fact situation strikingly similar to the one at bar. The existence of some public duty does not necessarily preclude the possibility that a private duty also exists. Our original opinion correctly sets forth the test to be applied.

The principal question that we find necessary to answer in this opinion concerns an argument raised by the County for the first time in their petition for rehearing. The County claims that the trial court lacked subject matter jurisdiction of this case, inasmuch as Briggs failed to file notice of the claim with the Auditor of the County for its disallowance by the County Commissioners prior to commencement of his lawsuit. In Foster v. County Commissioners, Morgan County (1975), Ind.App. 325 N.E.2d 223 (petition for transfer filed), we held that '(f)iling of the claim and its disallowance by the county is necessary to establish the jurisdiction of the court over such claims. IC 1971, 17--2--1--4 (Burns Code Ed.)' We further held in Foster that the defense that the county there asserted by means of its motion for summary judgment was the lack of subject matter jurisdiction which cannot be waived but may be raised by the parties at any point during the action.

We now find it necessary to modify our holding in the Foster case.

The Supreme Court of this state has consistently held that the failure to file a legal claim with the County Auditor prior to filing suit against that county does not deprive the court in which suit was filed of subject-matter jurisdiction, provided that court was, as it was in the case at bar, a court of [167 Ind.App. 139] general jurisdiction with jurisdiction over the general class of such cases, namely, suits against the county. Instead, this absence of notice or claim must be raised affirmatively to defeat the jurisdiction of the court in which suit was filed.

In Bass Foundry & Mach. Works v. Bd. of Comm'rs of Parke Co., et al. (1888), 115 Ind. 234, 17 N.E. 593, the Supreme Court ruled that the filing of a claim with the Auditor need not be pleaded in the complaint, and that the absence of such claim did not involve the subject-matter jurisdiction of the trial court. The Supreme Court did state that the county claim statute requires notice, but held that the absence of such notice makes the jurisdiction of the court subject to affirmative

Page 375

defense, and in absence of such defense, the jurisdiction could not be challenged because the right to challenge had been waived. It was stated in Bass at 115 Ind. 234, 17 N.E. 593:

'. . . The difference between want of jurisdiction because the court is wholly without power or authority to take cognizance of and adjudicate upon the particular subject-matter involved in the suit, and want of jurisdiction on account of non-existence of some extraneous fact which may or may not exist in that case, is not to be disregarded. Where the court is, in law, incompetent, and without the faculty to deal with the subject-matter before it, its proceedings and judgment, without regard to any question of waiver or consent by the parties, would be coram non judice. In such a case the want of jurisdiction would necessarily appear upon the face of the complaint, and objection might be taken by demurrer or motion to dismiss. Where, however, the subject-matter before the court is within its ordinary jurisdiction, so that its judgment would be binding, unless the facts going to defeat its jurisdiction in that particular case were brought forward, a court of general jurisdiction may proceed until the facts showing want of jurisdiction are made affirmatively to appear. This is so because the parties may, in such a case, waive any question concerning the jurisdiction of the court. Where facts exist which would deprive the court of jurisdiction, or arrest the...