Moran v. Miller

• Decision Date: 17 November 1926
• Docket Number: 24,483
• Citation: 153 N.E. 890,198 Ind. 429
• Parties: Moran et al. v. Miller, State Fire Marshal, et al
• Court: Indiana Supreme Court

153 N.E. 890

198 Ind. 429

Moran et al. v. Miller, State Fire Marshal, et al

No. 24,483

Supreme Court of Indiana

November 17, 1926

1. TRIAL.---A finding outside the issues cannot support a conclusion of law and judgment based thereon. p. 437.

2 JUDGMENT.---A judgment assuming to determine matters wholly outside the issues is not binding on the parties. p. 437.

3. APPEAL.---Decision of circuit court on appeal from an order of state fire marshal not appealable, as such decision is final.---Where a proceeding did not originate in a court, but reached the circuit or superior court only by way of a statutory appeal or review of an ex parte order of an administrative board or officer, authorized by a statute which provides that the decision of the circuit or superior court shall be final, no appeal can be taken therefrom to the Supreme or Appellate Court. p. 438.

4. APPEAL.---Right to question constitutionality of statute under which appeal to circuit court was taken.---One who petitioned the circuit court for a review of an order of the state fire marshal, under the provisions of 11767 Burns 1926 and joined in submitting the matter to the court for decision, cannot, by an appeal from the court's decision question the constitutionality of the provision in the same statute that the decision of the circuit court shall be final. p. 438.

5 APPEAL.---A party is estopped to complain of court's action in doing what he asked and induced the court to do, even though the action may have been erroneous. p. 440.

From Elkhart Superior Court; William B. Hile, Judge.

Samuel Moran and another filed separate petitions in the St. Joseph Circuit Court asking a review of the same order of the State Fire Marshal, Newman T. Miller. The two petitions were consolidated, and the consolidated case sent on change of venue to the Elkhart Superior Court. The P. and R. Corporation was granted leave to intervene. From a decree sustaining the order of the State Fire Marshal, and granting intervener certain relief, the petitioners appeal.

Appeal dismissed.

Louis M. Hammerschmidt, Hubbard, Farabaugh & Pettengill and Walter R. Arnold, for appellants.

Graham & Crane, Shively, Gilmer & Doran and Chester Davis, for appellees.

OPINION

Per Curiam.

On November 23, 1922, appellant Moran and appellant Mogle each filed in the St. Joseph Circuit Court his separate petition naming the appellee fire marshal as sole defendant, by means of which each petitioner professed to appeal from a decision of the state fire marshal made on September 29, purporting to review and in part confirm an order of the second deputy fire marshal, issued August 23, 1922, commanding that a designated brick building which had been damaged by fire should be torn down.

The petitions both sought to review the same order and were exactly alike, except for one alleging that Mogle, under a lease for a designated period of time, upon certain terms and conditions, occupied a room and basement known as No. 130 North Michigan street, and the other that Moran, under a lease for a like period on the same conditions, occupied a storeroom and basement next door in the same building, known as No. 132 on said street, and a room in the rear on the first floor, with the basement and sub-basement under it. Each petition consisted of three paragraphs, the third of which was afterward amended and will be referred to in its amended form. Each of these three paragraphs in each petition commenced with the statement that "come now the plaintiffs and for cause of action against the defendant and by way of a petition praying a review of the order No. M-822 of the State Fire Marshal of the State of Indiana allege and say." And after setting out certain facts each of them continued as follows: "And the plaintiffs herein do feel themselves aggrieved by the order made by the deputy fire marshal, marked Exhibit A, hereinbefore referred to, and more particularly by the decision of the State Fire Marshal after reviewing such order, which decision is referred to hereinbefore as Exhibit C." And the prayer for relief appended to each paragraph recited that "Wherefore, plaintiffs pray that this court review said order of said fire marshal hereinbefore set forth, and make such order in the premises as right and justice may require, and for all other and proper relief"; the prayer at the end of the third paragraph also asking in the alternative that the court dissolve and hold null and void the order of the state fire marshal in that it was unconstitutional. And each paragraph as well as the title to the petition, named as the sole defendant thereto, "Newman T. Miller, as State Fire Marshal of the State of Indiana," and did not mention the name of any party to this appeal except him, nor indicate in any manner that any other parties had an interest in the proceeding.

Each first paragraph alleged that the room described, on the ground floor of a three story brick building at the street number as stated, had been leased to the petitioner for a term of years extending to October 1, 1926, by certain named lessors who were not joined as parties and are not parties to this appeal, and concerning whose title nothing was alleged; that petitioner took and ever since had held possession of said premises, and his lease was still in full force and effect; "that on the 13th day of August, 1922, said premises were partly damaged by fire"; that on the twenty-third the second deputy fire marshal, without previous notice to petitioner, executed and caused to be served upon him a written order, reciting that said deputy had inspected the building which embraced petitioner's storerooms, and had found it especially liable to fire and so situated as to endanger other property by reason of its age and dilapidated condition, and commanding the owners and occupants, "within 30 days from date of service of this order, to remove said building and all rubbish and debris resulting from such removal," under penalty of a fine for neglect to do so: that within five days thereafter, on August 28, each petitioner had filed with the state fire marshal a notice of appeal from said order, reciting that the order had been served on the petitioner and that he appealed from it by virtue of the statute (§ 11767 Burns 1926, § 7, Acts 1913 p. 556), which order the State Fire Marshal was asked to review. That on September 29, said state fire marshal executed and filed and served upon petitioner his decision, after review of the deputy's said order, confirming the finding and order so reviewed, except that it was modified by excusing the owners and occupants from the obligation to tear down a certain party wall, and extending the time allowed for complying with the order.

Each second paragraph of the petitions alleged the same facts as the first paragraphs, with the additional averment that the building was not in a dilapidated condition, and did not endanger other property by reason of its age or such dilapidated condition. And each third paragraph alleged the same facts as the second paragraphs, and also alleged that the act to establish the office of fire marshal, etc. (§§ 11761 et seq. Burns 1926, Acts 1913 pp. 556-567, as amended by Acts 1917 pp. 429, 434) violates certain specified provisions of the state and federal constitutions. But neither alleged that anybody had torn down the building or disturbed the petitioner in his possession in any way, or was threatening to do so, or that anything whatever had been done of which complaint was made, except that the second deputy had issued the order, and that, on appeal to the State Fire Marshal, he had modified and then confirmed it, as above set out. As was suggested above, the relief asked was that the court should review the order of the state fire marshal and declare it void and dissolve it; no other relief in the way of an injunction, or damages, or anything else, being demanded.

The state fire marshal having filed an answer of general denial to each petition, the proceedings were ordered consolidated and the consolidated case was sent on change of venue to the superior court at Elkhart. Each petitioner having asked for a special finding of facts, the court heard evidence, none of which is in the record. But, after the opening statement for the petitioners had been made, the P. & R. corporation, which the court afterward found to be the owner of the building by conveyance from those who leased it to petitioners, was granted leave to intervene, and it filed an answer of general denial, though no affirmative pleading was ever filed which suggested that it had title to or an interest in the property, or any facts other than those alleged in the complaint, except only its petition for leave to be made a party defendant.

A special finding was made to the effect that in 1916 the then owners of the three story building referred to and of the land on which it stood had executed a lease in writing of "the first floor and basement of the building known as No. 132 North Michigan street," and certain first floor and basement rooms in an adjoining building, to appellant Moran for the term of ten years, and "the first story and basement of the three story brick building, known as No 130 North Michigan street," to appellant Mogle for a like term; that the leases contained no covenant on the part of the lessor to repair or to rebuild, and no stipulation as to what should be the effect in case the building was destroyed by fire; that in 1922 the P. & R. corporation became and had since continued to be the owner in fee simple of said building and also of two adjoining buildings, as well as the ground on which all the buildings stood; that the three story building in which the storerooms leased to petitioners were...