Lambert v. Smith

• Decision Date: 14 November 1939
• Docket Number: No. 27241.,27241.
• Citation: Lambert v. Smith, 216 Ind. 226, 23 N.E.2d 430 (Ind. 1939)
• Parties: LAMBERT v. SMITH.
• Court: Indiana Supreme Court

216 Ind. 226

23 N.E.2d 430

LAMBERT

v.SMITH.

No. 27241.

Supreme Court of Indiana.

Nov. 14, 1939.

Action by Robert L. Lambert against Clem Smith, etc., for review of a prior judgment sustaining order of the state fire marshal directing the removal of a house as a fire hazard, and for a declaratory judgment that prior judgment was void.Judgment dismissing the action, and plaintiff appeals.

Affirmed.Appeal from Lake Circuit Court; T. Joseph Sullivan, Judge.

C. C. McGuire, of Gary, for appellant.

Omer S. Jackson, Atty. Gen., Glen L. Steckley, Deputy Atty. Gen., and J. Gordon Sherer, of Indianapolis, for appellee.

SHAKE, Judge.

At all the times here involved the appellant was the owner of a house and lot in the city of Gary.On December 10, 1935, the chief of the Gary Fire Department, acting for the state fire marshal, ordered the removal of said house on the ground that it was a fire hazard because of its age and dilapidated condition and its proximity to other property.The state fire marshal confirmed the order on February 26, 1936.The appellant took an appeal from the order to the Lake Circuit Court, which sustained the order of the fire marshal, and entered judgment against the appellant on May 5, 1939.Appellant's complaint in that cause was in the nature of an argumentative denial of the findings of the fire marshal upon which the order of removal was made.It categorically denied that the building was a fire hazard; that it was in a dilapidated condition; that inflammable and combustible matter, liable to cause an explosion, was stored therein; and asserted that the building could be repaired, renovated, and remodeled to obviate the conditions found to exist by the fire marshal.There was no allegation that the order of the fire marshal was arbitrary or unreasonable or that the statute under which it was made was unconstitutional or otherwise invalid.No questions of law were presented or saved in that action.These proceedings were had under the Acts of 1913, Ch. 192, § 7, as amended byActs of 1927, Ch. 115, § 2, the same being § 20-807, Burns' 1933.Said statute says that there shall be no appeal from the judgment of the circuit court in such a case and none was attempted.

Subsequent to the above-mentioned proceedings, the appellant instituted this action in the same court that rendered the former judgment.The complaint was in two paragraphs.By the first he sought a review of the prior judgment for errors of law and by the second a declaratory judgment that said prior judgment was void and ineffectual.In both paragraphs he attacked, for the first time, the constitutionality of the above-mentioned statute.The Attorney Geleral entered a special appearance and moved to dismiss the action, which motion was sustained, and judgment rendered for the appellee.This appeal followed.Two issues of law are presented for our determination: (1) whether appellant is entitled to a review of the original judgment under the allegations of the first paragraph of the complaint; and (2) whether an action for a declaratory judgment may be maintained for that purpose under the facts disclosed by the second paragraph.

A Complaint to review a judgment must show that proper objections or exceptions were reserved in the original proceedings to save the error subsequently sought to be corrected.Myer v. Minch, 1910, 45 Ind.App. 495, 91 N.E. 32.This rule, of course, does not apply to cases in which the error is not waived by failing to except, as where the complaint does not state any cause of action or the court has no jurisdiction over the subject-matter.Davis v. Perry et al., 1872, 41 Ind. 305;Davidson v. King et al., 1875, 51 Ind. 224.Appellant's first paragraph of complaint filed in the proceeding now before the court wholly fails to present any recognized ground for review.It was clearly subject to demurrer for want of facts.

The Declaratory Judgments Act, Acts 1927, Ch. 81, § 2, 3-1102,...