Joint County Park Bd. of Ripley, Dearborn and Decatur Counties v. Stegemoller, 28501

• Decision Date: 27 January 1950
• Docket Number: No. 28501,28501
• Parties: JOINT COUNTY PARK BOARD OF RIPLEY, DEARBORN AND DECATUR COUNTIES v. STEGEMOLLER et al.
• Court: Indiana Supreme Court

Page 720

89 N.E.2d 720

228 Ind. 103

JOINT COUNTY PARK BOARD OF RIPLEY, DEARBORN AND DECATUR COUNTIES v. STEGEMOLLER et al.

No. 28501.

Supreme Court of Indiana.

Jan. 27, 1950.

Paul V. Wycoff, Batesville, Amos W. Jackson, Versailles, Ewing E. Wright, Osgood, for appellant.

Paul R. Schnaitter, Madison, Charles A. Lowe, Lawrenceburg, Cooper & Cooper, Madison, for appellees.

EMMERT, Judge.

Appellees in their petition for rehearing assert that by the language of the original opinion to the effect that the sixth objection pleaded matters in abatement which were waived by being joined with other objections which, if anything, were answers in bar, there was added 'something new' to the law in eminent domain cases, and that by implication, for the first time, the cases of Morrison v. Indianapolis & Western R. Co., 1906, 166 Ind. 511, 76 N.E. 961, 77 N.E. 744, 9 Ann.Cas. 587, and Vandalia Coal Co. v. Indianapolis & Louisville Ry. Co., 1907, 168 Ind. 144, 79 N.E. 1082, were overruled.

It is obvious that the full effect of the later decisions of Sisters of Providence of St. Mary's of the Woods v. Lower Vein Coal Co., 1926, 198 Ind. 645, 154 N.E. 659; Dyar v. Albright Cemetery Ass'n, 1927, 199 Ind. 431, 157 N.E. 545; and Reuter v. Milan Water Co., 1935, 209 Ind. 240, 198 N.E. 442, has not been fully considered by the appellees.

In the Sisters of Providence case, supra, a certificate of the lateral railroad required by § 55-2607, Burns' 1933, Acts 1869, Sp.Sess., ch. 46, § 6, p. 97, § 13224, Burns' 1926, was not filed in the recorder's office until several months after the action for condemnation was commenced and jurisdiction obtained of the appellants. The court in holding that this matter was one in abatement which should have been raised before an objection in bar said: '* * * The statute which provides for filing such a certificate does not command that it shall be filed before the action to appropriate lands for a right of way is commenced. If it could be construed to require such prior filing, we think the fact that a certificate had not been filed in time would be matter in abatement, to be pleaded under oath before joining issue in bar. The mere unsworn allegation in one paragraph of a series of exceptions in bar, filed at the same time, that such a certificate had not been filed before the suit was commenced, did not state a cause of defense. See Southern Indiana Ry. Co. v. Indianapolis & L. Ry. Co., 1907, 168 Ind. 360, 372, 81 N.E. 65, 13 L.R.A.,N.S., 197; Cleveland, C., C. & St. L. R. Co. v. Hadley, 1913, 179 Ind. 429, 438, 101 N.E. 473, 45 L.R.A.,N.S., 796.' (Italics added.) 198 Ind. pages 657, 658, 154 N.E. page 664.

A matter in abatement would be properly designated as an 'objection,' yet its nature is not changed by its name, and this court should consider it for what it is in fact and law.

This court in considering a waiver of jurisdiction of the person in an eminent domain proceeding in the Dyar case, supra, said: '* * * The provision of § 7683, Burns' 1926 (section 4, c. 48, Acts of 1905), [§ 3-1704, Burns' 1946 Replacement], that the clerk shall send a notice by mail to each nonresident landowner, was not complied with, but, since both appellants (defendants) appeared generally and submitted to the jurisdiction of the court, any insufficiency of notice or objection to the jurisdiction of the court was thereby waived. Slauter v. Hollowell, (1882), 90 Ind. 286.' 199 Ind. pages 434, 435, 157 N.E. page 546.

In the Reuter case, supra, the court, in holding that a general appearance under the eminent domain act waives any irregularity in the service of process, said: '* * * The record discloses that appellants appeared to the action and filed their objections, which are directed to the complaint and serve the purpose of a demurrer, an answer, or...