Chicago & S.E. Ry. Co. v. Kenney
| Decision Date | 26 November 1901 |
| Citation | 159 Ind. 72,62 N.E. 26 |
| Court | Indiana Supreme Court |
| Parties | CHICAGO & S. E. RY. CO. v. KENNEY et al. |
OPINION TEXT STARTS HERE
Appeal from circuit court, Clay county; P. O. Colliver, Judge.
Action for the appointment of a receiver by Charles Kenney and others against the Chicago & Southeastern Railway Company. From an interlocutory order appointing a receiver, defendant appeals. Affirmed.
W. R. Crawford and W. C. Stover, for appellant. A. H. Ratcliffe, Coffey & McGregor, and Knight & Knight, for appellees.
In this action, Charles Kenney and 13 others, holding claims against the Chicago & Southeastern Railway Company, asked the appointment of a receiver for that corporation, the sale of its property, and the equitable distribution of the proceeds of such sale among the creditors. This appeal is from an interlocutory order appointing a receiver. The appellant is a railway corporation organized under the laws of this state, and is operating a railroad between the cities of Anderson and Brazil. For the transaction of its business it maintains two offices in Clay county, Ind., located, respectively, at Cambon and Brazil. Four of the appellees hold judgments against the appellant which were rendered by the Putnam circuit court, in this state; three of them have claims for injuries to stock; five assert claims for damages due them for rights of way appropriated by the appellant in the counties of Montgomery and Parke; two hold judgments recovered before a justice of the peace of Parke county; and one sets up a claim upon an account against the appellant. All of these claims are alleged to be due and unpaid. The appellant refuses to pay them, and it is, as the appellees are informed, insolvent, or in imminent danger of insolvency. These facts are set out in the complaint, which asks that the amount due to each appellee be ascertained by the court, and that a receiver of the property and effects of the appellant be appointed. The complaint was verified. Notice having been served on the appellant on February 11, 1901, that on February 16, 1901, an application for the appointment of a receiver would be made by the appellees to the judge of the Clay circuit court, at chambers, in vacation, the appellant entered a special appearance at the hearing, and objected to the jurisdiction of the court on account of the alleged insufficiency of the complaint. The objections were overruled. A motion was then filed on behalf of the appellant for a postponement of the hearing for one week to enable it to obtain record and other evidence of the invalidity of certain of the claims set out in the complaint. The motion, which was under oath, was accompanied by an offer to pay into court the sum of $1,500 in discharge of such of the claims as were admitted to be just, or to execute a bond in that amount to secure their payment. The motion was denied. The application for the appointment of a receiver was submitted upon affidavits filed by the parties, respectively. At the close of the evidence the appellant renewed its motion for a postponement of the hearing, and tendered a bond in a penalty of $1,800 to secure the payment of such claims as should be found to be valid. This motion, also, was overruled. The finding of the court was in favor of the appellees, and an order was made appointing one Simonson receiver. Simonson thereupon qualified by taking the oath and giving bond as required by the statute. To all rulings against it, exceptions were reserved by the appellant. Some 14 errors are assigned, 7 of which question the jurisdiction of the court and judge over the subject of the action and the person of the appellant; 4 deny the validity of the appointment of the receiver; 2 relate to the refusal of the judge to postpone the hearing; and 1 alleges the insufficiency of the facts stated in the complaint to constitute a cause of action.
If the court had jurisdiction of the person of the appellant, the judge of the court, at chambers, in vacation, likewise possessed it. Burns' Rev. St. 1901, § 1236; Pressley v. Lamb, 105 Ind. 171, 4 N. E. 682;First Nat. Bank v. United States Encaustic Tile Co., 105 Ind. 227, 236, 4 N. E. 846. The objection to the jurisdiction of the court over the person of the appellant is placed upon the ground that, by an uncontradicted affidavit submitted by the appellant, it appeared that the principal office and usual place of residence of the appellant were in Delaware county, and hence that it could not be sued in Clay county. Whatever uncertainty may have existed under the former statutes as to service of process in such cases, the question has been put at rest by the act of February 7, 1899 (Acts 1899, p. 13), which provides “that any action against any corporation, organized under any law of this state, may be brought in any county where such corporation has an office or agency for the transaction of business, or in which any person resides upon whom process may be served against such corporation.” But, aside from the effect of the statute, it is to be remarked that, upon its so-called special appearance to the application for the appointment of a receiver, the appellant did much more than object to the jurisdiction of the court over its person. It expressly challenged the sufficiency of the facts stated in the complaint to constitute a cause of action. The motion, therefore, must be treated as a demurrer, as well as a motion affecting the jurisdiction of the court. Such a demurrer operates as a full appearance to the action, and as a waiver of all objections to the jurisdiction of the court over the person of the defendant. Slauter v. Hollowell, 90 Ind. 286;Bauer v. Samson Lodge, 102 Ind. 262, 266, 1 N. E. 571. There was therefore a voluntary appearance by the appellant to the action, and a waiver of all objections to the jurisdiction of the court over its person, if such objections existed.
The jurisdiction of the court over the subject of the action is contested upon the ground that, while some 14 plaintiffs joined in the complaint, no joint cause of action was stated. There is nothing in the objection as thus presented. The subject of the action was the enforcement of a money demand against the appellant, and the seizure and distribution of the property of the appellant through the agency of a receivership. Of such a subject the jurisdiction of the court is unquestionable. The objection goes rather to the sufficiency of the facts stated to show that the plaintiffs below had a common interest in the subject of the action, or in the relief demanded, than to the jurisdiction of the court over the subject of the action. All of the claims mentioned in the complaint were within the jurisdiction of the circuit court, no right of action being asserted under any statute which required the action to be brought in any particular jurisdiction. But, even if some of the claims set out in the complaint were improperly joined with others over which the court had jurisdiction, such misjoinder would not defeat the jurisdiction of the court. As to them the action might be dismissed in the trial court. Hursh v. Hursh, 99 Ind. 500;Naylor v. Sidener, 106 Ind. 179, 184, 6 N. E. 345;Order of Iron Hall v. Banker, 134 Ind. 293, 33 N. E. 1128, 20 L. R. A. 210;Gray v. Oughton, 146 Ind. 285, 286, 45 N. E. 191. The Code provides that all persons having an interest in the subject of the action, and in obtaining the relief demanded, shall be joined as plaintiffs, except as otherwise provided in the act. It has been held that a common interest in the relief sought authorizes the joinder of several plaintiffs, although in other respects their interests are separate and distinct. Bank v. Sarlls, 129 Ind. 201, 28 N. E. 434, 13 L. R. A. 481, 28 Am. St. Rep. 185;McIntosh v. Zaring, 150 Ind. 301, 49 N. E. 164;Robbins v. Turnpike Co., 34 Ind. 461;Small v. Hammes, 156 Ind. 556, 60 N. E. 342. And judgment creditors, although their claims are several, may unite in a suit to set aside a fraudulent...
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