Cook v. Herring

• Decision Date: 02 November 1959
• Docket Number: No. 19242,No. 1,19242,1
• Citation: 162 N.E.2d 108,130 Ind.App. 72
• Parties: Rosa E. COOK, James L. Hercules, Solomon Manley, Charles Manley, and Jacob Manley, Appellants, v. Ernest HERRING, alias Earnest Harring, Mary Marshall, Cora Barnes Long, alias Cora Barnes, Jennie Marie Cox, alias Gennie May Cox, Clifford Herring, Edwin Herring, alias Edward Herring, and Liberty National Bank and Trust Company of Louisville, Kentucky, and their unknown heirs, administrators, and assigns, Appellees
• Court: Indiana Appellate Court

Page 108

162 N.E.2d 108

130 Ind.App. 72

Rosa E. COOK, James L. Hercules, Solomon Manley, Charles

Manley, and Jacob Manley, Appellants, v. Ernest HERRING, alias Earnest Harring, Mary Marshall, Cora

Barnes Long, alias Cora Barnes, Jennie Marie Cox, alias

Gennie May Cox, Clifford Herring, Edwin Herring, alias

Edward Herring, and Liberty National Bank and Trust Company

of Louisville, Kentucky, and their unknown heirs,

administrators, and assigns, Appellees.

No. 19242.

Appellate Court of Indiana, Division No. 1.

Nov. 2, 1959.

Hanly Hammel, Jr., Lafayette, for appellants.

Albert Meranda, Jeffersonville, for appellees.

RYAN, Judge.

Appellants, the plaintiffs below, filed a complaint in the Scott County Circuit Court to contest a will of one George Hercules, who the complaint alleges was domiciled in Scott County at the time of his death and who left an estate there. To this complaint the appellees filed a motion to strike on the ground that the pleading was sham and was intended merely for delay.

The trial court overruled the motion to strike, and the appellee, Liberty National Bank and Trust Company, then filed the following unverified motion:

'Comes now the defendant, Liberty National Bank and Trust Company, of Louisville, Kentucky, and moves the Court to dismiss this action for the reason that the Court lacks jurisdiction in this cause of action for the following reasons: This cause of action is based upon a purported Will of George Hercules. There has been no Will of George Hercules probated in this Court or offered for probate in this Court.'

This motion was sustained, the cause of action was dismissed, and this appeal followed.

Our code of civil procedure, in § 2-901, Burns', 1946 Replacement, sets forth the reasons for which an action may be dismissed. This section provides as follows:

'An action may be dismissed without prejudice----

'First. By the plaintiff, before the jury retires; or, when the trial is by the court, at any time before the finding of the court is announced.

'Second. By the court where the plaintiff fails to appear on trial.

'Third. By the court, on the refusal to make the necessary parties; after having been ordered by the court.

'Fourth. By the court, on the application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence.

'Fifth. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action.

'In all other cases, upon the trial, the decision must be upon the merits.'

The inherent power of the trial court to dismiss an action is limited to those causes of action over which it has no jurisdiction. Soderling v. Standard Oil Co., 1950, 229 Ind. 47, 95 N.E.2d 298, State ex rel. Terminix Co. of Indiana v. Fulton Circuit Court, 1956, 235 Ind. 218, 132 N.E.2d 707, but where the trial court has jurisdiction over the subject matter the plaintiff has the right to a determination of his cause of action on the merits, unless the cause may be dismissed for one or more of the five reasons provided for in § 2-901, Burns', 1946 Replacement, quoted above. I.L.E. Dismissal § 31.

The original determination of whether or not the court has jurisdiction is determined from the allegations of the complaint. In the case before us we have a complaint to contest a will of a decedent who the complaint alleges was domiciled in Scott County at the time of his death, and who left an estate there. The Scott County Circuit Court, being a court of general jurisdiction in a county having no separate probate court, had, under the allegations of the complaint, jurisdiction over the subject matter of this action. An examination of the motion to dismiss shows it does not come within the purview of any of the five reasons of Burns' § 2-901.

The appellee by its motion to dismiss has attempted to question the sufficiency of the complaint, and neither a motion to strike nor a motion to dismiss can properly be used to test the complaint's sufficiency. Yelton v. Plantz, 1948, 226 Ind. 155, 77 N.E.2d 895.

Nor can a motion to dismiss be sustained where the court has...