Ctr. Tp., Marion Co. v. Bd. of Com'rs of Marion Co.

• Decision Date: 05 February 1887
• Citation: 10 N.E. 291,110 Ind. 579
• Parties: Center Tp., Marion Co., v. Board of Com'rs of Marion Co. and others.
• Court: Indiana Supreme Court

110 Ind. 579

10 N.E. 291

Center Tp., Marion Co.,

v.Board of Com'rs of Marion Co. and others.¹

Supreme Court of Indiana.

February 5, 1887.

Appeal from circuit court, Tippecanoe county.

Harris & Calkins, for appellant. Shepard, Elam & Martindale, for appellees.

HOWK, J.

This is the same case which was appealed to this court from the Marion superior court, and was finally decided here on the twenty-fourth day of May, 1886. The opinion and judgment of this court, on that appeal, are reported under the title of Board, etc., v. Center Tp., 105 Ind. 422, 2 N. E. Rep. 368, and 7 N. E. Rep. 189. On that appeal, the cause was presented, heard, considered, and decided here upon the trial court's special findings of the facts, and its conclusions of law thereon. The judgment of the Marion superior court was then reversed, and the cause was remanded, with instructions “to state its conclusions of law in accordance with the opinion of this court then pronounced, and to render judgment thereon in favor of the Indianapolis, Decatur & Springfield Railway Company, against the board of commissioners of Marion county, for $60,000, and interest thereon at six per cent. per annum, from the eighteenth day of March, 1881.”

Upon the return of this cause into the Marion superior court, and before the court had stated its conclusions of law and rendered judgment thereon, as required by the mandate of this court, Center township, the sole appellant herein, by its counsel, interposed a written motion in arrest of such judgment, and for the correction, so called, of the special findings of facts in certain specified particulars. This motion was overruled by the court, and to this ruling Center township excepted, and filed its bill of exceptions; and thereupon the trial court, in obedience to the mandate of this court, restated its conclusions of law upon the facts theretofore specially found. Upon such conclusions of law, on the seventh day of June, 1886, the trial court ordered, adjudged, and decreed that the Indianapolis, Decatur & Springfield Railway Company, on its cross-complaint herein, recover of and from the board of commissioners of Marion county the sum of $85,355.77, such judgment to bear 6 per cent. interest per annum, to which judgment Center township then excepted; and to all of such judgment in excess of $68,252.76, being the amount not paid out by it, the board of commissioners of Marion county then excepted. It was then and there further ordered, adjudged, and decreed by the court that the plaintiff, Center township, take nothing by its suit herein, and that the defendants have and recover of it their costs and charges herein, taxed at dollars. Thereupon Center township filed its verified motion to be relieved from such judgment then taken against it in favor of the Indianapolis, Decatur & Springfield Railway Company, and the affidavits of Ernest Kitz and H. N. Spaan, Esqs., in support of such motion; and such railway company also filed the affidavits of J. V. McNeal and of Shepard, Elam, and Martindale, in opposition to such verified motion of Center township. Thereupon the railway company aforesaid moved the court, upon affidavit filed, for a change of judge and a change of venue, which motion the court sustained, and the court then announced that, if there were no objections, it would transfer the matters pending herein to the circuit court of Tippecanoe county, before the Honorable David P. Vinton, judge of such court. “And thereupon, each of the parties hereto, by counsel, having severally in open court consented that the matters now pending herein should go to the said Tippecanoe circuit court,” it was ordered by the court that the venue of such matters then pending should be transferred to such circuit court for further hearing and determination. Afterwards, on September 27, 1886, in such Tippecanoe circuit court, the matters so pending herein as aforesaid having been fully heard and considered, the verified motion of Center township to be relieved from the judgment taken against it in favor of the aforesaid railway company was overruled by the court, and to this ruling the plaintiff, Center township, and defendants Wright and others as tax-payers, and the board of commissioners of Marion county, each separately and severally at the time excepted, and filed their bill of exceptions. Thereupon the court adjudged that such railway company recover of Wright and others, tax-payers, and of Center township, its costs, taxed, etc; and from this judgment this appeal is now here prosecuted.

Errors are assigned here by appellant, Center township, which call in question the overruling (1) of its motion in arrest of judgment and for the correction of the trial court's special findings of facts; and (2) of its motion to be relieved from the judgment against it in favor of the aforesaid railway company.

Cross-errors have also been assigned by Wright and others, as tax-payers, who are named as appellees in this court. These cross-errors do not differ from the errors assigned here by Center township, except in this: that a cross-error is assigned which questions the jurisdiction of the Tippecanoe circuit court to hear and determine the pending matters, which were transferred to that court, upon change of venue and of judge, from the Marion superior court. If this cross-error be well assigned, of course all the proceedings of such circuit court herein were coram non judice and void, and its orders and judgment must be reversed, if Wright and others are in a condition to assert here and insist upon such cross-error. It is not claimed, nor cannot be successfully claimed, that the court below had no jurisdiction of the subject of the matters transferred to it upon change of venue. This being so, Wright and others are estopped from claiming, and cannot be heard to claim, that the court below had no jurisdiction to hear and determine the very matters which, as is shown by the record, were transferred to such court for further hearing and determination, after they, by their counsel, had in open court severally consented to such transfer thereof. When the Marion superior court announced, as it did, that it would transfer the matters then pending in this case to the circuit court of Tippecanoe county, and before the honorable judge of such court, if there were no objections, it became the duty of each and every party to the record, if he or they intended to challenge the jurisdiction of that court upon any ground, to state at once his or their objections to such transfer, and the reasons therefor. In such case, the party cannot remain silent, even, and afterwards avail himself of an objection to the jurisdiction; for his silence would preclude or estop him from asserting such objection almost or quite as effectively as would his consent in open court to such transfer,unless, indeed, the objection goes to the jurisdiction of the subject-matter, which is not and cannot be waived. Here, as we have seen, the jurisdiction of the Tippecanoe circuit court of the subject-matter, upon a change of venue and of judge, properly applied for and duly granted by the court having original jurisdiction, is unquestioned and unquestionable. In such case, the consent of the parties to the transfer of the matters pending to the court below for hearing and decision, as shown by the record, of itself conferred jurisdiction, and estopped such parties from thereafter questioning or denying the jurisdiction of that court.

Besides, all the parties to the record and the Marion superior court seem to have considered and treated the pending motions, at the time the change of venue and of judge was granted, as motions in and parts of the original cause. As shown by the record, these motions were entitled in the original cause, and, after they were overruled by the Tippecanoe circuit court, the record of the Marion superior court in such original cause was brought to this court by Center township as a necessary part of the transcript on its appeal from the proceedings, orders, and judgment of the court below. Whether the original cause was an ordinary civil suit, or a suit in chancery, or a special proceeding, it was “the one form of action” which, in section 249, Rev. St. 1881, is “denominated a civil action.” In any civil action, “upon the application of either party,” made upon affidavit showing one or more of the statutory causes mentioned in section 412, Rev. St. 1881, the court in term, or the judge in vacation, before whom such action is pending, has no discretion, but must grant the change of venue or the change of judge. This is settled by many decisions of this court. Krutz v. Griffith, 68 Ind. 444;Shoemaker v. Smith, 74 Ind. 71;Heshion v. Pressley, 80 Ind. 490;Burkett v. Holman, 104 Ind. 6, 3 N. E. Rep. 406.

It cannot be doubted, therefore, that either party to the record, upon an affidavit, at the proper time and by the proper person, showing one or more of the statutory causes therefor, would have been entitled to a change of venue or a change of judge in the original cause. Whether “the matters pending herein,” which were transferred, upon the change of venue and change of judge, to the circuit court of Tippecanoe county, and before Judge Vinton, judge of such court, were or were not motions in the original cause, it is certain, we think, that neither Center township, nor Wright and others as taxpayers, are in a condition to claim that “the matters pending herein,” so transferred as aforesaid, were not motions in and parts of such original cause. If the matters so pending were parts of the original cause, there was no error in granting the change of venue and change of judge in such cause, and the Tippecanoe circuit court and Judge Vinton, as judge thereof, acquired full and complete jurisdiction of all matters then pending and undetermined therein.

It is claimed, on behalf of Center township, and of the tax-payers of such township...