Louisville, New Albany and Chicago Railway Co. v. Lockridge

• Decision Date: 12 February 1884
• Docket Number: 11,128
• Citation: 93 Ind. 191
• Parties: Louisville, New Albany and Chicago Railway Company v. Lockridge
• Court: Indiana Supreme Court

93 Ind. 191

Louisville, New Albany and Chicago Railway Company v. Lockridge

No. 11,128

Supreme Court of Indiana

February 12, 1884

From the Clay Circuit Court.

Judgment reversed, with costs.

D. R Eckels, P. O. Colliver and G. W. Friedley, for appellant.

S. F Lockridge, J. Crow, D. E. Williamson and A. Daggy, for appellee.

OPINION

Zollars J.

The complaint by appellee consists of three paragraphs. A demurrer to each for want of sufficient facts was overruled; appellant excepted, and on this appeal assigns the ruling as error. No point is made here except upon the insufficiency of the second and third paragraphs of the complaint.

The case seems to have been commenced in the Putnam Circuit Court, and on change of venue taken to the Clay Circuit Court, where a trial was had, which resulted in a verdict and judgment for appellee upon the whole complaint. Appellee moves to dismiss the appeal, because of the insufficiency of appellant's brief, and because the record does not contain the transcript from the Putnam Circuit Court, showing the change of venue. Appellant's brief is evidently not the result of much thought or labor, but is not so wholly lacking as to justify a dismissal of the appeal. It is inferable from the record that the change of venue was procured by appellee. It is stated therein that appellee's attorneys filed the transcript in the trial court, and that it is not on file. The record contains the complaint, which seem to have been filed in the Putnam Circuit Court. Both parties appeared in the Clay Circuit Court, and proceeded with the case to final judgment, and until this appeal without objection. We think that it is too late now for appellee to make the objection. Cox v. Pruitt, 25 Ind. 90; Smith v. Jeffries, 25 Ind. 376; Hamrick v. Danville, etc., Gravel Road Co., 32 Ind. 347.

A concession that the judgment is void, because the trial court was without jurisdiction, could be of no avail to appellee in support of his motion to dismiss the appeal. Such a concession might overthrow his judgment, but would not justify a dismissal of the appeal. There may be an appeal from a void judgment. Shoemaker v. Board, etc., 36 Ind. 175.

The second and third paragraphs of the complaint charge appellant with negligence in originating and allowing fire to escape from its right of way, whereby appellee's fences, grass etc., were destroyed. We agree with all appellee says in regard to the sufficiency of these paragraphs so far as they charge negligence upon the railroad company; but in both of them there is a total failure to show, by positive averment, or by a statement of facts, that the loss to appellee was without contributory fault or negligence on his part. It is the settled law, at least in this State, that where negligence is the issue, it must be a case of unmixed negligence; and that this must be made to appear by the complaint. This may be by an averment that the plaintiff was without fault or negligence contributing to the loss or injury, or by such a statement of facts as shows that he was thus without fault. In a recent case before this court the cases were reviewed, and the doctrine here stated re-announced. Pennsylvania Co. v. Gallentine, 77 Ind. 322. See, also, Toledo, etc., R. W....