City of Hobart v. Baum, 5

• Decision Date: 05 November 1957
• Docket Number: No. 5,No. 18608,A,5,18608
• Citation: City of Hobart v. Baum, 145 N.E.2d 573, 237 Ind. 316 (Ind. 1957)
• Parties: The CITY OF HOBART, Lake County, Indiana, Appellant, v. Cammie BAUM, Lillie Baum, Alice Baum, Niles N. Baum, and Owners of Certain Bonds, issued by the City of Hobart, Indiana, pursuant to Improvement Resolution and Assessment Roll Numbered 251, for the Construction of Hobart District Sewerppellees.
• Court: Indiana Supreme Court

Page 573

145 N.E.2d 573

237 Ind. 316

The CITY OF HOBART, Lake County, Indiana, Appellant, v.Cammie BAUM, Lillie Baum, Alice Baum, Niles N. Baum, and Owners of Certain Bonds, issued by the City of Hobart Indiana, pursuant to Improvement Resolution and Assessment Roll Numbered 251, for the Construction of Hobart District Sewer No. 5, Appellees.

No. 18608.

Supreme Court of Indiana.

Nov. 5, 1957.

Harry Long, Gary, Jarvis R. Peddicord, Hobart, for appellant.

Arnold G. Huebner, Hammond, John E. Hopkins, Rensselaer, George Douglas, Valparaiso

and Paul B. Huebner, Hammond, of counsel, for appellees.

ACHOR, Judge.

This cause is before us on petition to transfer.Appellees assert that the opinion of the Appellate Court erroneously decided a new question of law on two separate grounds.The first ground is stated as follows:

'(A)The Appellate Court's prevailing opinion, and the separate concurring opinion of Judge Crumpacker, err in holding that it was necessary for Appellees, upon becoming named plaintiffs and taking over the conduct of the class action, to allege and prove that the original class plaintiff owned bonds of City of Hobart Assessment RollNo. 251 when it commenced this action, because in point of law such proof was not requisite, and said opinion erroneously established a new rule of law.'

At the outset, we are confronted by the fact that the statement does not constitute a full and complete statement of tne 'new rule of law' established by the Appellate Court.We construe the opinion to hold that, when a new party-plaintiff is substituted for the original party-plaintiff in a class action, proof of the right of action in the original party-plaintiff is necessary '* * * in order to avoid the running of the statute of limitations,' until '* * * the time of the filing of appellees' (interveners') complaint * * *'City of Hobart v. Baum, Ind.App.1956, 135 N.E.2d 618, at 620, which, in this case, was after the statute of limitations had run.We concur in the rule thus announced.

We recognize the fact that an unnamed member of the class is a party to the suit from the beginning, in the sense that he cannot file a seperate suit based upon the subject-matter of the class action.1 Am.Jur. 23.Neither can an unnamed member of the class interfere in the prosecution of a case pending an adjudication in favor of the class, except on authority to intervene granted by the court.

However, this does not negative the fact that the right of the class to recover is contingent upon the right of action in the named plaintiff who represents the class.If his action fails, then the class action fails also.Thus, if he is a mere interloper, not qualified to represent the class, neither he nor the class whom he purports to represent have any valid status in court and his action could not terminte the running of the statute of limitations as against unnamed members of a class who were not properly in court...