City of Huntington v. Northern Indiana Power Co.
| Decision Date | 02 February 1937 |
| Docket Number | 26661. |
| Parties | CITY OF HUNTINGTON et al. v. NORTHERN INDIANA POWER CO. |
| Court | Indiana Supreme Court |
Appeal from Huntington Circuit Court; David E. Smith, Special judge.
Arthur D. Sayler, of Huntington, W. H. Eichhorn, of Bluffton, and Daily, Daily & Daily, of Indianapolis, for appellants.
Mart J. O'Malley, Lee M. Bowers, and Fred H. Bowers, all of Huntington, Evans & Hebel, of Indianapolis, and Milo Feightner, of Huntington, for appellee.
The appellee filed this action in the Huntington circuit court on January 1, 1935, praying for a restraining order, temporary and permanent injunctions to prevent an alleged illegal invasion of its rights as the sole utility engaged in domestic and commercial lighting, distribution, and sale of electric current, light, and power in the City of Huntington as a public utility operating under an indeterminate permit issued by the Public Service Commission on June 25, 1923, and for damages accrued to appellee by reason of appellants' actual and threatened invasion of such rights.
It is alleged that the City of Huntington is not and never has been engaged as a utility in the production and sale of electric current for domestic or commercial purposes, but for many years has owned and operated an electric generating plant for the purpose of producing current to light the streets and public buildings, and for strictly municipal purposes; that on the 1st day of January, 1935, the City of Huntington, through its officers and employees, without qualifying as a public or municipal utility and without complying with the requirements of law, threatened to proceed, and unless enjoined would proceed, unlawfully to engage in domestic and commercial lighting in the City of Huntington to the irreparable damage of appellee.
The complaint was verified and accompanied by bond; a restraining order was issued without notice to appellants. Summons and notice were served on appellants for a hearing on the issuance of a temporary injunction; upon hearing, January 26, 1935, the temporary injunction was granted restraining the acts of appellants and ordering the maintenance of the status quo until final hearing and order of court. Thereafter, the appellee filed three successive supplemental complaints, on to wit, March 18, May 20, and June 19, 1935, alleging in each that the appellants wholly ignored and disregarded the restraining order and temporary injunction, and proceeded, and were continuing to do all the acts enjoined, and the appellee asked that the court grant to it a mandatory injunction to compel the appellants to remove their said equipment, alleged to be wrongfully and unlawfully installed.
The appellants filed answers in which the contention is made that the City of Huntington was on January 1, 1935, and had been for many years, a municipal utility, and had a right to extend its operations to serve the public generally. Replies were filed to these answers. The cause was submitted to the court for trial, and on August 16, 1935, the court entered judgment in favor of appellee.
The judgment of the court, upon the findings, decreed that the appellee and its predecessors owned and operated the sole and only utility lawfully engaged in the generation of electric current for domestic and commercial purposes, under a franchise issued from said city, until June 23, 1923, when the franchise was surrendered and an indeterminate permit was granted by the Public Service Commission of Indiana; that the City of Huntington was not on, or prior to, January 1, 1935, engaged in the business of furnishing electric current for domestic and commercial purposes.
The judgment further enjoined the appellants from extending its electric system to the homes and places of business in the City of Huntington; from generating any current or using any of the property, equipment, or facilities of said city for that purpose. It was ordered that the City of Huntington, the Board of Public Works and Safety, and the officers and employees, within twenty days from the date of the judgment, should disconnect all electric transformers from the transmission lines of said defendant city, and remove all polls, lines, wires, meters, and all other fixtures and appliances that had been installed since the 1st day of January, 1935. Judgment for damages in the sum of $5 was given to the appellee.
Attention will be given to each error relied upon for reversal in the order in which they are presented by appellants. The first error relied upon by appellants is based upon the court's action in overruling their motion and objections to the bond filed by appellee prior to the granting and issuing of the temporary injunction on January 26, 1935, and overruling motions to require additional bond thereafter. The appellants claim that appellee has not complied with the statute authorizing the granting of either a temporary or permanent injunction, and therefore it was error to overrule each of said motions. They rely upon the statute which provides that no injunction or restraining order shall be granted until the party asking it shall enter into written undertaking with surety to be approved by the court, conditioned for the payment of all damages. Burns' Ind.St.1933, § 3-2107, section 1067, Baldwin's Ind.St.1934.
It is contended by appellants that by reason of the failure of the court to require bond so conditioned it was without jurisdiction of the subject-matter in granting the temporary injunction. It appears from the record that two injunction bonds were approved by the court--the first, a personal bond filed January 1, 1935, conditioned as provided by statute--the second, a surety company bond filed January 16, 1935, limiting liability to $15,000. The defect in the bond, if any, is cured by the statute. Burns' Ind.St.1933, § 3-2512, section 1142, Baldwin's Ind.St.1934. Even if there was a defect in the injunction bond or bonds, that fact would not affect the jurisdiction of the court, since the court may at any time require an additional bond. Lewis et al. v. Rowland (1892) 131 Ind. 103, 29 N.E. 922. It cannot be questioned that the Huntington circuit court had general jurisdiction to try cases in which injunctive relief is sought. As stated in Lewis et al. v. Rowland, supra: 'It is also a rule that, where a court of general jurisdiction has jurisdiction of the subject-matter of the suit and of the parties, no judgment it may render within the issues is void, however erroneous it may be.'
The finding and judgment of the court disclose that the appellants gave no heed to the restraining order or the temporary injunction, but continuously from the 1st day of January, 1935, to the time of the trial ignored such restraining order and temporary injunction, and continued to do all things enjoined by the court, that appellants continued the establishment and building of their equipment for the purpose of serving the public as a municipal utility; that appellants did not maintain the status quo, and were unaffected by said temporary injunction in so far as this action is concerned, and are in no position to complain about alleged defects in the bonds. The only purpose of the injunction bond was to protect the appellants in the event they were wrongfully prohibited from doing what they had a right to do, and if they had been wrongfully restrained and temporarily enjoined, they had a remedy upon the bond or bonds. But since the court has found and decreed that the appellants were in the wrong, no reason appears why they should be permitted to object to the form and sufficiency of the bonds, or either of them. As a matter of fact, the injunction suit could have been maintained without the restraining order, temporary injunction, or bonds, and a final judgment could have been rendered by the court permanently enjoining the appellants. Lake Erie & Western R. R. Co. v. Cluggish et al. (1896) 143 Ind. 347, 42 N.E. 743. There was no error in overruling the appellants' objections to the bonds. The Huntington circuit court had jurisdiction of the subject-matter. Burns' Ind.St.1933, §§ 2-101 and 3-2101, sections 14 & 1061, Baldwin's Ind. St.1934; Farmers', etc., Tel. Co. v. Boswell Tel. Co. (1918) 187 Ind. 371, 119 N.E. 513.
The next objection by the appellants is based upon the overruling of appellants' demurrer to the appellee's second paragraph of reply to appellants' fifth and sixth paragraphs of answer. These paragraphs of answer relate to the same subject and charge that neither the appellee nor its predecessors held a legal franchise or indeterminate permit to the exclusion of the City of Huntington; that the appellee was using the city's streets and alleys by sufferance; that the city was then and theretofore engaged in performing all the functions and was possessed of all necessary requirements to make it at that time a public and municipal utility operating in said city; that the indeterminate permit held by appellee did not exclude the rights of the city; that the appellee possessed no right to operate in the city by virtue of an indeterminate permit issued to its predecessor on June 25, 1923, upon the surrender of a franchise claimed to have been granted to its predecessor, because the record does not show that it was accepted; that appellee abandoned its manufacturing plant in 1924 in said city and thereafter brought its electric current into the city from the outside, thereby violating the terms of the original franchise.
The second paragraph of appellee's reply to said answer in substance alleged that even if it is not shown that appellee's predecessor made a formal acceptance of record of the franchise granted by the city, nevertheless the predecessor actually entered...
To continue reading
Request your trial