Brown v. Doak Company
| Decision Date | 19 May 1922 |
| Docket Number | 24,066 |
| Parties | Brown v. Doak Company |
| Court | Indiana Supreme Court |
From Sullivan Circuit Court; William H. Bridwell, Judge.
Action by the Doak Company against John C. Brown. From a judgment for plaintiff, the defendant appeals. (Transferred to the Supreme Court under § 1429 Burns 1914, Acts 1893 p. 29.)
Reversed.
Thomas F. O'Mara and Clay A. Phillips, for appellant.
Josiah T. Walker and George E. Osburn, for appellee.
This action was originally brought before a justice of the peace of Harrison township, Vigo county, Indiana, for recovery of the possession of a certain house and lot in the city of Terre Haute, and for damages for the detention thereof.
The facts appearing from the record are: 'That on September 11, 1919, a suit was brought before D. S Maurer, a justice of the peace, of Harrison township, Vigo county, Indiana. On September 22, 1919, upon the application of defendant a change of venue was taken and the venue was changed to one Frank J. Morrison, a justice of the peace of said Harrison township, Vigo county, Indiana. On October 14 1919, while that cause was still pending before said justice of the peace, Frank J. Morrison, the appellee filed before justice of the peace, D. S. Maurer, the above entitled cause of action, being the identical cause of action and against the same defendant as the suit filed on September 11, 1919 before said justice of the peace, D. S. Maurer. On October 20, 1919, the appellant filed his verified plea in abatement to the action filed before said justice of the peace, Maurer, on October 14, 1919, which plea in abatement alleges:
"That on the 11th day of September, 1919, before said justice of the peace, Maurer, the plaintiff in this action brought an action against this defendant, which is identically the same action filed on the 14th day of October, 1919; summons was issued by said justice of the peace on said complaint and the defendant appeared on said 22nd day of September, 1919, and filed his affidavit for change of venue from the said justice of the peace, D. S. Maurer; that said venue was on said day duly changed to the office and before one Frank J. Morrison, a justice of the peace of Harrison township, Vigo county, Indiana; that said cause of action as aforesaid is now pending and has never been dismissed; that on the 14th day of October, 1919, while the above mentioned cause of action was still pending before said justice of the peace, Frank J. Morrison, the plaintiff filed in this office before said justice of the peace, D. S. Maurer, the above entitled cause of action for possession of certain real estate described therein and damages for the detention thereof; that both plaintiff and defendant in each cause of action, hereinabove set out, are the same and not different parties; that the subject matter of each cause of action is identical; that the plaintiff in above said causes of action has brought said causes of action against this defendant for an identical demand which is for the possession of the therein described real estate, which is identical in both causes of action, and for the detention thereof."
On October 20, 1919, justice of the peace, Maurer, "overruled" this plea in abatement, and on October 23, 1919, judgment was rendered against appellant for possession of the property and damages for the detention thereof. On October 23, 1919, appellant appealed from this judgment so rendered by justice of the peace, Maurer, to the superior court of Vigo county. On October 30, 1919, after judgment had been rendered by justice of the peace, Maurer, and after appellant appealed to said superior court, the appellee dismissed his first action theretofore pending before justice of the peace, Morrison. On December 6, 1919, the appellant filed his affidavit and motion in the superior court of Vigo county, praying a change of venue from said Vigo county, and the venue was changed to the Sullivan Circuit Court, of Sullivan county, for trial. On March 18, 1920, the appellee first filed what it called its reply to appellant's plea in abatement, setting up said facts relating to appellee's dismissal of his first action.
The "reply" to the plea in abatement, which "reply" was filed in the Sullivan Circuit Court, alleges that prior to the institution of this said suit there had been instituted by this plaintiff against this defendant a suit for possession of the real estate described in the plaintiff's complaint, but affiant says that said suit was by the orders of the affiant to his agent and attorney ordered dismissed, and the office of the justice of the peace before whom said action was pending was authorized to dismiss said suit, and that prior to the trial of the above entitled cause, plaintiff caused to be deposited in the office of the clerk of Vigo county, the costs of the said cause of action. Affiant further says that the dismissal of said cause was not entered of record by reason that the justice of the peace who had jurisdiction of said cause was sick and ill, and that thereafter he died; that as soon as the commissioners of Vigo county appointed a succeeding justice of the peace, the motion of the plaintiff to dismiss the said cause of action was sustained and the court costs were paid; that all of the above transpired prior to the venuing of this case to this court. That there is now only one cause of action pending between plaintiff and defendant for the possession of said real estate described in plaintiff's complaint, and that there is no suit pending wherein there are any unpaid costs, and that there is no cause for the abatement of this action now existing.
The issues raised by appellant's plea in abatement were tried upon an agreed statement of facts as follows:
"The parties to this cause hereby agree in open court that all the facts set forth in the plea in abatement filed by the defendants and bearing date of October 20, 1919, in the court of justice of the peace, Daniel S. Maurer, Harrison township, Vigo county, Indiana, are true and are to be taken and considered by the court as the facts in this cause upon the trial of the same; and they further agree that the facts set forth in the verified "reply" filed by the plaintiff to said plea in abatement in the Sullivan Circuit Court on this date are true and are to be taken as the conceded facts in the trial of said cause on said plea in abatement, with the addition that the dismissal of the action referred to in the defendant's plea in abatement was entered of record October 30, 1919; and they further agree that this action is now the only action pending in any court for the possession of the real estate described in the plaintiff's complaint."
Upon this statement of facts the court found for the plaintiff that the action should not be abated. The cause was then tried on the complaint and general denial thereto and the court found for the plaintiff that it is entitled to the possession of the real estate described in its complaint and damages for the unlawful detention thereof and rendered judgment accordingly. After a motion for a new trial had been overruled appellant appealed and assigned as error the overruling of such motion.
It is the contention of appellee that no question is presented by this appeal on the sufficiency of the plea in abatement for the reason that in order to present a question of that kind it was necessary for appellant to file a separate motion for a new trial on the plea in abatement and if such motion is overruled, appeal from the judgment of the court on the plea in abatement. This position is not tenable. A judgment that a suit shall not abate is not a final judgment and is...
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