Matlaw Corp. v. War Damage Corp.

• Decision Date: 08 May 1953
• Docket Number: No. 18315,18315
• Citation: 112 N.E.2d 233,123 Ind.App. 593
• Parties: MATLAW CORP. v. WAR DAMAGE CORP.
• Court: Indiana Appellate Court

Page 233

112 N.E.2d 233

123 Ind.App. 593

MATLAW CORP. v. WAR DAMAGE CORP.

No. 18315.

Appellate Court of Indiana, in Banc.

May 8, 1953.

Rehearing Dismissed June 12, 1953.

Water Myers, Jr., Indianapolis, Jay E. Darlington, Hammond, for appellant.

Marshall E. Hanley, U. S. Atty., Indianapolis, Holmes Baldridge, Asst. Atty. Gen. (Edward H. Hickey and Irving Malchman, Atty., Dept. of Justice, Washington, D. C., of counsel), for appellee.

CRUMPACKER, Judge.

The appellant filed a complaint in the Marion Superior Court making the appellee War Damage Corporation, a subsidiary of and wholly owned by the Reconstruction Finance Corporation, the sole party defendant. A series of four separate summonses were issued on this complaint and each was returned to the court in due course with the facts concerning service endorsed thereon by the sheriff of Marion County through his duly appointed, qualified and acting deputy. Thereafter on April 1, 1948, the appellant appeared in said court, moved for and obtained the following order:

'And the Court being duly advised in the premises now orders the clerk to issue alias summons against the War Damage Corporation, the defendant herein, to be served upon its fiduciary agents, the Grain Dealers National Mutual Fire Insurance Company, and the Connecticut Fire Insurance Company, which said summons shall be returnable on the 14th day of April, 1949.'

On the same day and in compliance with said order an alias summons was issued to the sheriff of Marion County commanding him to summon the appellee to appear in said court on April 14, 1949, by service upon its 'fiduciary agents' Connecticut Fire Insurance Company and Grain Dealers National Mutual Fire Insurance Company. The sheriff made return thereon reciting facts showing service as directed. Sec. 2-1905, Burns' 1946 Replacement, has this to say concerning alias summonses:

'* * *; and if, at any time after the filing of the complaint, it shall be found that any party to the action has not been properly notified, the plaintiff may file with the clerk or endorse on the complaint, in vacation, a written request for such notice to be given, and while the court is in session by obtaining an order that such notice be given, naming therein the day on which such party is required to appear in the action and summons shall be issued or publication made accordingly, in the proper case, as above provided; * * *.'

From the fact that on April 1, 1948, the court ordered an alias summons, we must assume that it found that the appellee had 'not been properly notified' by any of the previous summonses and the service thereof. Such finding, right or wrong, was urged upon the court by the appellant and we therefore give said previous summonses and the returns thereon no further consideration.

The appellee, evidently concluding that the court had not yet acquired jurisdiction over its person, appeared specially and on April 10, 1948, and on April 24, 1948, filed almost identical motions to quash all summonses theretofore issued and set aside the service thereof and also filed, on said dates, similar pleas in abatement each of which was accompanied by an unattached and unverified instrument entitled 'Memorandum in support of plea in abatement and motion to quash summonses and set aside service thereof.' Why the April 24 set of these pleadings were filed is not apparent from the record although the memorandum filed on that day alleges some additional matters not appearing in the prior memorandum. Each of these pleas in abatement and each of said motions to quash were attacked by separate demurrers for insufficient facts.

This practice is strange to us and we know of no provision of our code that permits two separate and distinct pleas in abatement to be addressed simultaneously to the same complaint or two separate and distinct motions to quash the same summons. Neither can a demurrer be directed to a motion. It has been held that such practice is 'wholly without warrant in our system of jurisprudence.' Bonfoy v. Goar, 1895, 140 Ind. 292, 39 N.E. 56, 57; Sidener, Administrator v. Coons, Administrator, 1892, 83 Ind. 183. Nevertheless the court saw fit to entertain both motions to quash, both pleas in abatement and the four demurrers thereto and, after being duly advised, overruled all of said demurrers and ordered the appellant to answer both pleas in abatement and respond to both motions to quash. This the appellant refused to do but on the contrary elected to stand on its demurrers and thereupon the court entered judgment that this action abate and that all summonses be quashed and service thereof be set aside. From this judgment the appellant appeals challenging the court's ruling on its said demurrers.

Our practice contemplates that a motion to quash a summons or return challenges any defect that appears on the face of the summons or return and should clearly indicate the defects complained of. Flanagan, Indiana Pleading and Procedure 148, § 88; Donnelley v. Thorne, 1944, 114 Ind.App. 468, 51 N.E. 873; Jeffersonville, Madison & Indianapolis Railroad Co. v. Dunlap, 1868, 29 Ind. 426. Defects which do not appear on the face of the summons or return are reached by a plea in abatement in which the facts constituting such defects must be alleged. Flanagan, Indiana Pleading and Procedure 149, § 88; Donnelley v. Thorne, supra; Workingmen's Mutual etc., Ass'n v. Swanson, 1909, 43 Ind.App. 379, 87 N.E. 668. The appellee chose not to follow this orthodox practice. Its first motion to quash, which seems to be directed to all summonses theretofore issued and the returns thereon, contains nothing but the mere legal conclusion that 'no effective service has been obtained on said defendant.' It utterly fails to set out the defects, appearing on the face of said summonses or returns, it seeks to challenge. The second motion to quash is directed specifically to the alias summons and contains nothing more than a statement that the service of said summons 'does not constitute service on the defendant War Damage Corporation nor has any other effective service been had upon said defendant.' Again there is no indication as to what are the defects, appearing on the face of the summons or return, to which the appellee objects. The memoranda in support of these motions are of no assistance as they concern themselves with matters that should have been pleaded in abatement.

Notwithstanding all this it is difficult for us to understand how error can be predicated upon the overruling of the demurrers to the two motions. As stated above demurrers to such motions were not proper in the first instance and should have been stricken from the files. They were allowed to stand and were overruled which, perhaps, accomplished the same purpose. This left the motions to quash undisposed of and, as they point out no defects that appear on the face of the summonses and returns to which they were directed, they should have been overruled.

We now come to a consideration of the two pleas in abatement and the demurrers thereto. As heretofore stated, if the appellee is in court it is by virtue of the alias summons and the service thereof. All others went out of the record when the court found them insufficient and on that ground ordered the issuance of the alias summons. It is our opinion that there is no authority in our practice for two separate and distinct pleas, simultaneously on file, to abate the same action for the same reasons. The last one filed was not offered as amendatory of the first nor does it comply with the requisites of a supplemental pleading. We are constrained to hold that when it was filed it became a substitute for the first plea and that its effect was to withdraw the same. Our discussion will therefore be confined to the plea in abatement and the memorandum in support thereof, filed April 24, 1948, as they pertain to the alias summons and its service. Omitting caption, signature and oath, said plea reads as follows:

'Comes now B. Howard Caughran, United States Attorney, by special appearance for the defendant War Damage Corporation, and asks the Court that this action abate as to said defendant for the following reasons and upon the following grounds:

'This Court has not acquired jurisdiction over the War Damage Corporation as defendant in this cause since no proper, valid, or legal service has been made on said defendant.'

In will be noted that this plea makes no mention of the unattached memorandum which accompanied it nor does it by reference make the same a part thereof. As far as the record discloses the memorandum was merely filed simultaneously with the plea in abatement and offered as an unsworn statement of facts in support of such plea which, in itself, alleged no facts tending to abate the action. As a controversy is waged over whether or not such memorandum is a part of the plea in abatement we set it out as follows:

'In support of Plea in Abatement and Motion to Quash Summonses and Set Aside Service of Process, both of which are filed simultaneously herewith, and by way of supplement to the Memorandum filed in support of similar pleadings filed by the undersigned by special appearance for the defendant War Damage Corporation on April 10, 1948, the undersigned would respectfully state to the Court that the attempt to acquire jurisdiction over the War Damage Corporation by serving E. H. Richardson, as state agent of Connecticut Fire Insurance Company and by serving Otis N. Earl, vice president and secretary of Grain Dealers National Mutual Fire Insurance Company, is not effective and has not brought the said defendant War Damage Corporation under the jurisdiction of this Court as a defendant in this cause.

'Although described as 'fiduciary agents' neither the Connecticut Fire Insurance Company nor the Grain Dealers National Mutual Fire Insurance Company had any authority to accept service of process for the defendant at the time of said...