Citizens Street Railroad Co. v. Shepherd

• Decision Date: 20 December 1901
• Docket Number: 3,245
• Citation: 62 N.E. 300,29 Ind.App. 412
• Parties: CITIZENS STREET RAILROAD COMPANY v. SHEPHERD
• Court: Indiana Appellate Court

62 N.E. 300

29 Ind.App. 412

CITIZENS STREET RAILROAD COMPANY v. SHEPHERD

No. 3,245

Court of Appeals of Indiana

December 20, 1901

Transfer denied June 24, 1902.

From Hamilton Circuit Court; J. F. Neal, Judge.

Action by Lillie M. Shepherd against the Citizens Street Railroad Company for damages for personal injuries. From a judgment for plaintiff, defendant appeals.

Affirmed.

F Winter, S. N. Chambers, S. O. Pickens, C. W. Moores, C. W Smith, J. S. Duncan, H. H. Hornbrook, A. Smith, W. H. Latta, F. E. Gavin, T. P. Davis and J. L. Gavin, for appellant.

W. A. Ketcham, I. W. Christian, W. S. Christian, E. E. Cloe, L. C. Walker and W. J. Beckett, for appellee.

HENLEY, J. Wiley, J., concurs. Robinson, J. ROBY, J., concurs.

OPINION

HENLEY, J.

This is an action commenced in the Marion Superior Court for damages growing out of an injury received by appellee, and caused by the alleged negligent acts of appellant. The alleged negligent acts of appellant, as described in appellee's complaint, were as follows: Appellee was a passenger on one of appellant's cars. It was a dark night and raining. She was accompanied by three small children, one of whom she held in her arms. When she arrived at the point where she desired to leave the car, she helped her children out, and the conductor helped her alight. Upon inquiry by her he instructed her as to the direction to go, and stepped back upon the car step. In some manner appellee's skirt had not been removed from the car step, and was stepped on by the conductor. The car moved away with the conductor standing with one foot on her dress skirt, and pulled appellee to the ground, inflicting the alleged injuries for which she brings this action.

The sufficiency of the complaint is discussed by appellant's counsel under a proper assignment of error. The complaint is not subject to the objections contended for by counsel. The facts stated are sufficient, and are well pleaded. There was no error in overruling the demurrer to the complaint.

There were seven other specifications of the assignment of errors, which assail the action of the lower court in overruling appellant's plea in abatement, in granting to appellee, upon her motion, a change of venue to Hamilton county, in sustaining appellee's demurrer to appellant's plea to the jurisdiction of the Hamilton Circuit Court, in overruling appellant's motion to remand the cause to the Marion Superior Court, and in overruling appellant's motion for a new trial. We will dispose of the questions presented in the above order.

The plea in abatement is based upon the following facts therein set out: Appellee, on the 23d day of November, 1897, filed in the circuit court of Marion county her complaint on account of the same identical cause of action set forth in her complaint in this cause, seeking the same relief, and for the same alleged injuries, occurring in the same manner, and to the same extent. Afterwards, on the 13th day of February, 1899, the cause having been put at issue, and having been called for trial, and while the jury was being impaneled, appellee dismissed her cause, and upon leave of court withdrew her complaint, and on the following day refiled her complaint in this cause in the Marion Superior Court. That the circuit court rendered a judgment against the appellee for $ 14.20 costs, which remains unpaid, and appellee is prosecuting this cause without first paying said judgment for costs, and that said action in so doing is wrongful and oppressive. Appellee filed her affidavit stating facts tending to show that the second action was not vexatious. In a case like this one it is within the sound discretion of the court to stay, or refuse to stay, the proceedings upon the facts presented, and the presumption of vexation is overcome by the slightest countervailing evidence. Sellers v. Myers, 7 Ind.App. 148, 34 N.E. 496; Kitts v. Willson, 89 Ind. 95; Eigenman v. Eastin, 17 Ind.App. 580, 45 N.E. 795; Cashman v. Brownlee, 128 Ind. 266, 27 N.E. 560; Harless v. Petty, 98 Ind. 53. The proper practice, we think, in cases of this kind, is to move to stay the proceedings until the costs of the former action have been paid. If the facts presented by the defendant justify it, the court will make an order directing the plaintiff to pay the costs within a time named. If the order is not complied with, the action should be dismissed. The record in this case does not show that the trial court abused its discretion in the matter.

Over appellant's objection, appellee was granted a change of venue from Marion county. The cause was sent to Hamilton county, where appellant made a special appearance, and filed a plea in two paragraphs to the jurisdiction of the court. A demurrer for want of facts was sustained to each paragraph. Appellant then filed a motion to remand the cause to the Marion Superior Court. The motion to remand states fully the facts relied upon. Omitting the caption, the motion to remand was in the following words: "The defendant, the Citizens Street Railroad Company, moves the Hamilton Circuit Court to remand and transfer this cause to the Marion Superior Court, of Marion county, Indiana, for and on account of the facts and circumstances hereinafter set forth and herein shown to the court, to wit: That heretofore, on the 23d day of November, 1897, the plaintiff in this cause, Lillie M. Shepherd, filed her certain complaint against this defendant, the Citizens Street Railroad Company, in the Marion Circuit Court, State of Indiana, alleging the same identical cause of action set forth in her complaint in this cause, averring the same identical facts of negligence on the part of the defendant as are averred in this cause, and praying relief of the same character and amount as prayed for in her complaint in this cause; that thereafter such proceedings were had in the said Marion Circuit Court as that the said cause was put at issue by the defendant herein, being the same corporation as the defendant herein, and that thereafter, on the 2d day of July, 1898, the same being the twenty-fourth judicial day of the June term of the Marion Circuit Court, the said plaintiff Lillie M. Shepherd came into said Marion Circuit Court and filed her affidavit and motion for a change of venue from said Marion county, Indiana; that the said motion was considered by the court, and sustained, upon said 2d day of July, 1898, and it was ordered by said Marion Circuit Court that the venue of the said cause be changed to Morgan county, Indiana, and that the said plaintiff Lillie M. Shepherd perfect said change and pay the costs thereof within ten days thereafter; that the said plaintiff Lillie M. Shepherd did not perfect said change or pay the costs thereof either within the said ten days from the 2d day of July, 1898, or any other or different time, but allowed the said cause to remain, and the same did remain, pending in the said Marion Circuit Court until the 13th day of February, 1899, at which time and upon which day the said plaintiff Lillie M. Shepherd appeared in the said Marion Circuit Court and dismissed her said cause of action, with leave to withdraw the complaint therein; that the next day, to wit, February 14, 1889, the said plaintiff Lillie M. Shepherd filed her said complaint in the Marion Superior Court, of Marion county, Indiana, being a court of concurrent and equal jurisdiction, in so far as the matters and things set forth in said complaint are concerned, against this defendant, the Citizens Street Railroad Company; and defendant says that it believes, and has reason to believe, from the fact that in said complaint so filed in the Marion Superior Court the caption of said cause is described as being in the Marion Circuit Court, and for other reasons of similarity, that the said complaint so filed in the Marion Superior Court is the same identical complaint heretofore filed in the Marion Circuit Court, except that the cover thereof has been changed.

"The defendant says that the said complaint alleges the same facts identically, charges the same identical acts of negligence as were charged in the said complaint in the Marion Circuit Court, and prays the same relief, and is in all things similar, identical, and the same as the said complaint in the said Marion Circuit Court, and that the cause of action alleged to exist in favor of the plaintiff in the said Marion Circuit Court and in the said Marion Superior Court was and is in all things identical and the same. That upon the said complaint in the said Marion Superior Court summons was, upon the order of the said plaintiff, indorsed upon said complaint, made returnable on the 25th day of February, 1899 that thereafter, on the 24th day of February, 1899, and before summons was returnable in said cause, the said plaintiff Lillie M. Shepherd filed her certain affidavit and motion in said Marion Superior Court for a change of venue of said cause from Marion county to some other or adjoining county; that on the 7th day of March, 1899, this defendant filed in said Marion Superior Court its answer in opposition to said motion for said change of venue, setting up the facts hereinbefore set forth, and objected to said motion being sustained, and to any order by said Marion Superior Court granting a change of venue to the plaintiff in said cause; that thereafter, on the 23d day of March, 1899, said motion being heard, the same was by the said Marion Superior Court sustained, over the objection and exception of the said defendant, to which ruling the defendant at the time excepted, and immediately thereupon prepared and filed in said cause its bill of exceptions thereon; that thereupon, the said motion having been sustained by the court, the said plaintiff attempted to perfect such change of...