Crabb v. Orth

• Decision Date: 29 November 1892
• Citation: 133 Ind. 11,32 N.E. 711
• Parties: CRABB v. ORTH.
• Court: Indiana Supreme Court

133 Ind. 11

32 N.E. 711

CRABB

v.ORTH.

Supreme Court of Indiana.

Nov. 29, 1892.

Appeal from circuit court, Vigo county; William Mack, Judge.

Proceeding by Jacob Orth against James H. Crabb to contest an election. Judgment for plaintiff. Defendant appeals. Affirmed.

George W. Farris and I. N. Pierce, for appellant. J. E. Lamb, McNutt & McNutt, and John T. Scott, for appellee.

Elliott, J.

The appellant was declared elected to the office of township trustee at the election held in April, 1888, by a majority of one vote, and was inducted into office. On the 11th day of the same month the appellee began a proceeding under the statute to contest the election of the appellant, claiming that he (the appellee) had been duly elected. The appellant entered a special appearance in the commissioners' court, and moved to quash the notice and the service. This motion was sustained, and the case carried by appeal to the circuit court. In that court the appellee was successful. The record, however, shows that before the special appearance was entered in the commissioners' court the appellant had appeared generally. The recital in the record is this: “Come now the parties by their attorneys, and by agreement, and for reasons satisfactory to the board shown, it is now ordered that the bearing of this case be until the 7th day of May, 1888, continued.” There was no objection to the record of the board of commissioners in the court below, and we cannot consider questions not properly presented to the court of original jurisdiction. See authorities cited Elliott, App. Proc. § 470. The appellant acted upon the theory that there was an insufficient notice, and did not in any appropriate mode challenge the proceedings of the board of commissioners, and to that theory he must be held. It would be unjust to the adverse party and to the court to permit a party to assume a definite theory in the trial court, and shift from it to another in the appellate tribunal. The authorities maintain with much strictness the doctrine that the theory adopted in the trial court must be adhered to on appeal. See authorities cited Elliott, App. Proc. §§ 489, 490. The record recital we have copied, which imports absolute verity, shows that before the motion to quash was made the appellant had appeared generally, and agreed to a postponement of the case. This general appearance precludes him from successfully assailing the service of notice. See authorities cited Elliott, App. Proc. § 677. The case of Shirley v. Hagar, 3 Blackf. 225, is not opposed to our conclusion, for in that case the party expressly reserved the right to plead in abatement, whereas in this case there was an unqualified appearance. It may be proper to add that it is doubtful whether Shirley v. Hagar can be reconciled with later decisions. We can find nothing in Norton v. State, 106 Ind. 163, 6 N. E. Rep. 126, relevant to the...