Grider v. Scharf
| Decision Date | 24 June 1947 |
| Docket Number | 28285. |
| Citation | 73 N.E.2d 749,225 Ind. 251 |
| Parties | GRIDER et al. v. SCHARF. |
| Court | Indiana Supreme Court |
Appeal from Newton Circuit Court; Newell A. Lamb Judge.
Albert H. Gavit and Richard S. Kaplan, both of Gary, and George F. Sammons, of Kentland, for appellants.
Jay E. Darlington, of Hammond, for appellee.
Appellants have filed a petition for rehearing in which they urge that we erred in refusing to change the long standing rule that a motion in arrest of judgment should bar a subsequent motion for a new trial. They have again failed to convince a majority of the Court. In the course their comments they refer to Boor, Administrator v. Lowrey, 1885, 103 Ind. 468, 3 N.E. 151, 53 Am.Rep. 519, which was cited in the original opinion in this case. They assert that the Lowrey case is not persuasive because, notwithstanding there had been a motion in arrest of judgment, this court, in reversing the case, ordered a new trial. The record in the Lowrey case shows that there was a verdict; then followed a motion for a new trial, which was overruled; then followed a motion in arrest of judgment, which was overruled; and then followed final judgment from which the appeal was taken. A motion for a new trial having ben filed before the motion in arrest, the ordering of a new trial upon the reversal of the case is not inconsistent with the rule that a motion is arrest cuts off a motion for a new trial.
Appellants assigned as error the action of the trial court in sustaining a demurrer to the plea in abatement of the appellant United Steel Workers of America. In their petition for a rehearing they point out that we failed to rule upon this assigned error and they say that they have a constitutional right to have this question ruled upon. With this we agree. The plea in abatement read as follows:
'Comes now defendant, United Steel Workers of America, an unincorporated organization, by their attorneys, David B Rothstein, Plaz A. Lucas and John W. Wake, and appear specially for the purpose of questioning the jurisdiction of the court over this defendant and say:
'1. That at the time the above entitled action was commenced, and continuously ever since, and at the present time, defendant is and was not a resident of the County of Lake, State of Indiana, but, at the time of the beginning of said suit and ever since said time, defendant has been, and still is, a resident of and with its principal office located in the City of Pittsburgh, County of Allegheny, State of Pennsylvania, and that it has a membership of approximately six hundred thousand (600,000) members throughout the United States of America.
'2. This defendant further alleges that none of the persons sued by name in this cause as officers and/or members of the United Steel Workers of America, are administrative officials of the United Steel Workers of America or represent the interests of the membership of the same and are not authorized by this defendant to act as such, and that this defendant is not bound or liable by the acts or the conduct of any of the parties named and sued in the plaintiff's complaint.
'3. Defendant further says, that none of the officers, agents, or members of this defendant, United Steel Workers of America, have been served with process by the Sheriff of Lake County or his deputies, and that this court has no jurisdiction over this defendant.
'Wherefore, defendant prays that this action against them do abate and that they recover their costs herein and for all other proper relief.'
In their points and authorities in their original brief appellants said that the plea in abatement brought to the attention of the court that the union was not suable as a legal entity. It will be observed that at no place in the plea in abatement was it alleged that the union was not a suable entity and no facts are alleged upon which it could be claimed that such a conclusion could be based, except the rather parenthetical reference to itself as an 'unincorporated organization' in the introduction to the plea. The question of the suability is not presented but rather by implication the plea in abatement concedes that with proper service there could be jurisdiction over the United Steel Workers of America. The only ground for abatement presented to the Court by the plea was that there had been no proper service. It is only alleged that none of the persons sued by name as officers or members of the union are administrative officials or represent the interests of the membership and...
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