Price v. Bayless

• Decision Date: 30 April 1892
• Docket Number: 15,748
• Citation: 31 N.E. 88,131 Ind. 437
• Parties: Price v. Bayless
• Court: Indiana Supreme Court

31 N.E. 88

131 Ind. 437

Price v. Bayless

No. 15,748

Supreme Court of Indiana

April 30, 1892

From the Wells Circuit Court.

Judgment reversed with costs, with instructions to grant a new trial and sustain the demurrer to the amended complaint.

E. R Wilson and J. J. Todd, for appellant.

A. N Martin and E. C. Vaughn, for appellee.

OPINION

McBride, J.

The appellee, by this suit, sought to establish his right to the easement of a right of way across certain lands of the appellant, and to enjoin the appellant from obstructing it or in any manner interfering with its free use.

The first proposition discussed by counsel for the appellant relates to alleged error of the judge of the Wells Circuit Court in granting a temporary injunction while absent from the State, at Petoskey, in the State of Michigan, and in overruling a motion by the appellant to dissolve the same.

This action was unquestionably erroneous. His authority as judge was conferred alone by the constitution and laws of this State. Our laws have no extra-territorial operation. When the judge passed the boundaries of the State the power to exercise judicial functions did not follow him. He could not, as judge, sit in chambers in the State of Michigan, and issue a valid restraining order. The error, however, while properly saved by exception, and by bill of exceptions, and fully discussed, can not avail the appellant. If he had appealed from that ruling a reversal would have been inevitable.

The appeal, however, was not taken until after a trial of the cause on its merits, and a final judgment in the appellee's favor, which vacated the temporary injunction. The error had thus become harmless. Board, etc., v. Markle, 46 Ind. 96.

The appellant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and this ruling is assigned as error. It is difficult to determine from the averments of the complaint whether the right claimed is an easement acquired by prescription or a way by necessity. It is, not, however necessary that we resolve this doubt, although in argument counsel for the appellee insist that the theory of the complaint is that the appellee is entitled to a way by necessity. It is also evident that the court below thus construed it. It contains no description of the land over which the easement is claimed. This omission is sought to be cured...