Coleman v. Floyd
| Decision Date | 28 April 1892 |
| Docket Number | 15,764 |
| Citation | 31 N.E. 75,131 Ind. 330 |
| Parties | Coleman et al. v. Floyd |
| Court | Indiana Supreme Court |
From the Clinton Circuit Court.
Judgment reversed.
J O'Brien and C. C. Shirley, for appellants.
J. V Kent, for appellee.
This suit was begun in the Howard Circuit Court. The appellants asked a change of venue, and the case was sent to the Clinton Circuit Court, and from that court it was sent by change of venue to the Grant Circuit Court, where it remained, duly docketed, from the 27th day of November, 1886, until the 22d day of February, 1887. On the day last named the Grant Circuit Court, on its own motion, ordered the case back to the Clinton Circuit Court. The case reached that court on the 29th day of March, 1887, and, on the 14th day of June, 1889 the appellants were called and the cause submitted to the Clinton Circuit Court for trial as upon the failure to appear for trial. A judgment was entered against them. On the 5th day of October, 1889, the appellants moved to set aside the judgment. In the affidavit filed in support of the motion it was alleged that the venue was changed to the Clinton Circuit Court, then to the Grant Circuit Court, that the case was once continued by that court and then ordered back to the Clinton Circuit Court; that the appellants had no notice of the action of the Grant Circuit Court, and were ignorant of the fact that the case was on the docket of the Clinton Circuit Court; that they had no knowledge of the action of the latter court until the 25th day of September, 1889; that they have a valid and meritorious defence to the appellee's complaint, as set forth in their answers filed in the Howard Circuit Court; that they did not appear to the suit in the Clinton Circuit Court after its return to that court, and that they were residents of Howard county. The appellants' motion was overruled, and an exception properly reserved.
The change from the Clinton Circuit Court was granted upon the application of the appellee, and there was no objection to the order directing that the case should go to the Grant Circuit Court. Presumptively, therefore, the case went to the latter court through the instrumentality of the appellee. She applied for the change, and it was her duty to perfect it; hence we must assume that this duty was performed. As the appellee obtained the change and was instrumental in carrying the case to the Grant Circuit Court, she is not in a situation to successfully assert that the case was not properly in that court, unless she can make it appear that there was no jurisdiction over the subject resident in that tribunal.
It seems quite clear that if the parties had appeared and tried the case in the Grant Circuit Court, neither could have successfully urged that the proceedings were coram non judice. There was general jurisdiction of the subject and of the persons, and where such jurisdiction exists the proceedings are not void. There is an essential and clear distinction between jurisdiction of a subject and jurisdiction of a particular case. This difference is illustrated in the cases which hold that the failure to object to the exercise of jurisdiction by a court of equity waives the jurisdictional question, although if objection is duly made the case would necessarily go to a court of law. Grandin v. Le Roy, 2 Paige Ch. 508; Le Roy v. Platt, 4 Paige Ch. 76; Truscott v. King, 6 N.Y. 147; Buffalo, etc., Co. v. Delaware, etc., Co., 130 N.Y. 152, 29 N.E. 121.
It is illustrated, also, in the cases which hold that, although an action may be brought in the wrong State or county, there may be jurisdiction where there is no seasonable objection. Indianapolis, etc., R. R. Co. v. Solomon, 23 Ind. 534.
The difference between jurisdiction of the subject and jurisdiction of the particular instance is stated and discussed in Jackson v. Smith, 120 Ind. 520, 22 N.E. 431 (522), State, ex rel., v. Wolever, 127 Ind. 306, 26 N.E. 762 (315), McCoy v. Able, post, p. 417 and Yates v. Lansing, 5 Johns. 282. The decision in Perrill v. Nichols, 89 Ind. 444, even if sound, is not in point, for the reason that in that case there was no general jurisdiction. Here there was general jurisdiction over the general class of cases to which this case belongs. There was, at all events, much more than a naked usurpation of jurisdiction by the Grant Circuit Court.
The Grant Circuit Court did assume jurisdiction over the case under color of right and by invitation of the appellee. The case was placed upon its docket, was there for some months, and was once formally continued. There was, therefore, an assumption of jurisdiction by one court of general jurisdiction of a cause sent to it by another tribunal of equal rank, and we do not think it can be held that the court which assumed jurisdiction was an usurper. If it was not, there was jurisdiction; if jurisdiction, the case could only pass from that court by a judgment, for there was no right to arbitrarily transfer it to another tribunal.
We have given full consideration to the...
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