Pry v. Pry

• Decision Date: 12 December 1947
• Docket Number: 28319.
• Citation: 75 N.E.2d 909,225 Ind. 458
• Parties: PRY v. PRY.
• Court: Indiana Supreme Court

75 N.E.2d 909

225 Ind. 458

PRY v. PRY.

No. 28319.

Supreme Court of Indiana

December 12, 1947

Appeal from Superior Court No. 2, Lake County; John G. Baran judge.

Willard B. Van Horne, Sr., and Willard B. Van Horne, Jr., both of East Chicago, for appellant.

Martin A. Karr, of East Chicago, for appellee.

GILKISON, Judge.

Appellee filed her action for divorce against appellant. Later she filed her verified application for support money and attorney fees. Appellant filed an answer in abatement to the divorce complaint, and an affirmative answer to the petition for support and attorney fees; he then filed a motion for change of venue from the county. The court, before ruling on the motion, ordered that the hearing for temporary support and attorney fees proceed, to which appellant objected 'on the ground that plaintiff has not answered or replied to defendant's answer and objections to plaintiff's petition for temporary support and allowance.' The court overruled this objection, and after hearing the evidence awarded the custody of the six months old child to the appellee and awarded $40 a month for support and $125.00 for attorney fees.

From this interlocutory order the appeal is taken. Appellant relies upon his assigned errors from 1 to 8 inclusive. By these assigned errors appellant contends: (a) That the issue attempted to be raised by his plea in abatement should have been tried before hearing the application for temporary support and attorney fees. (b) That it was error to hear the petition for temporary support and attorney fees after appellant's motion for change of venue from the county was filed. (c) That the allowance is excessive and a gross abuse of discretion. (d) That the court erred in refusing to hear evidence on the validity and existence of the marriage sued upon. We shall consider these alleged errors in the order given.

By his plea in abatement appellant charged in substance that prior to the filing of this action, he had filed an action against appellee, in which appellee filed a cross-complaint for divorce, and that in that action she was allowed $125 attorney fees which appellant paid. That thereafter she dismissed her cross-complaint. There are such other averments that it is reasonable to presume the complaint also was dismissed, probably prior to the dismissal of the cross-complaint. The prayer to the plea in abatement is: 'That the proceedings herein be stayed or abated until said cause (costs) occasioned by the filing of said cross-complaint * * * are paid by the plaintiff herein.' There is no averment in the plea in abatement showing whom the costs were adjudged against in the action dismissed, but since there is always a presumption that a party will plead all proper facts favorable to his cause, we must presume the judgment for costs was against the pleader. Merrill v Pepperdine, 1894, 9 Ind.App. 416, 420, 36 N.E. 921; State ex rel. MacKenzie v. Casteel, Auditor, 1887 110 Ind. 174, 187, 11 N.E. 219; Pond, Administrator et al. v. Sweetser et al., 1882, 85 Ind. 144, 149, 150; Pein v. Miznerr, 1908, 170 Ind. 659, 665, 84 N.E. 981. Omitted facts are to be considered as adverse to the pleader under the general presumption that a party will set forth all the facts favorable to his case. Penn-American etc., Co. v. Harshaw, etc., Co., 1910, 46 Ind.App. 645, 647, 90 N.E. 1047; Cushman v. Cloverland Coal etc., Co., 1908, 170 Ind. 402, 408, 84 N.E. 759, 16 L.R.A., N.S., 1078, 127 Am.St.Rep. 391; Fink v. Cleveland, etc., R. Co., 1914, 181 Ind. 539, 543, 105 N.E. 116.

The answer in abatement was not at issue, and if it had been, the court could not have tried it after the motion for change of venue from the county was filed. We find no error in hearing the petition for temporary support and attorney fees, before hearing and determining the answer in abatement.

The appellant's answer to the application for temporary support and attorney fees avers facts that may or may not be admissible in the trial of his plea in abatement, and in the trial of the case on its merits, but were not admissible in the trial of the application for allowance pendente lite. In such a hearing neither the merits of the petition for divorce nor that of the answer in abatement are before the court and cannot be heard. Argiroff v. Argiroff, 1939, 215 Ind. 297, 330, 19 N.E.2d 560; Gruhl v. Gruhl, 1890, 123 Ind. 86, 88, 23 N.E. 1101.

At the hearing of appellee's petition, her attorney made the following admission: 'To expedite the matter, we will admit that the defendant has a judgment of annulment of the marriage in the East Chicago City Court and that the judgment was entered by the judge of the East Chicago City Court.' Appellant contends that this admission precluded the trial court from taking further action on the petition. Appellee contends that any judgment rendered by the East Chicago City Court in an action to annul a voidable marriage is void for want of jurisdiction of the subject matter.

The act creating the East Chicago City Court provides for its jurisdiction thus: Such court 'shall have jurisdiction of all civil cases for the enforcement of demands not exceeding two thousand dollars [$2,000].

Such court shall have jurisdiction in any action where the parties or the subject-matter are in the township in which such city is located and service may be had in the same manner as now provided by law governing the practice of justice of the peace courts for obtaining service: Provided, however, That such city court shall not have jurisdiction in action for slander, libel, matters relating to decedents' estates, appointment of guardians and all matter connected therewith, divorce and actions for injunction, or mandate: Provided, further, That such city court may assume jurisdiction of cases coming to it on change of venue from a justice of peace in such township.' § 4-2701, Burns' 1946 Replacement.

Our statute providing for the annulment of voidable marriages is as follows:

'When either of the parties to a marriage shall be incapable, from want of age or understanding, of contracting such marriage, or when such marriage is procured through fraud of one of the parties, the same may be declared void, on application of the incapable party in the case of want of age or understanding and of the innocent party in the case of fraud, by any court having jurisdiction to decree divorces; but the children of such marriage begotten before the same in annulled, shall be legitimate; and, in such cases, the same proceedings shall be had as provided in applications for divorce.' § 44-106, Burns' 1940 Replacement.

In determining the jurisdiction of the East Chicago City Court to entertain, hear and determine an action to annul a voidable marriage the two statutes above noted must be considered together and if possible, both must be given full force and effect. Medias v. City of Indianapolis, 1939, 216 Ind. 155, 162, 23 N.E.2d 590, 125 A.L.R. 590; Board of Com'rs of Whitley County v. Garty, 1903, 161 Ind. 464, 469, 68 N.E. 1012. State ex rel. Barnett v. City of Noblesville, 1901, 157 Ind. 31, 34, 60 N.E. 704. Carver et al. v. Smith et ux., 1883, 90 Ind. 222, 226, 46 Am.Rep. 210. Section 44-106, supra, was first enacted on March 10, 1873, and is § 25 of Ch. 43, Acts 1873, pp. 107, 112, providing as follows:

'When either of the parties to a marriage shall be incapable from want of age or understanding, of contracting such marriage, the same may be declared void, on application of the incapable party, by any court having jurisdiction to decree divorces, but the children of such marriage, begotten before the same is annulled, shall be legitimate, and in such cases the same proceedings shall be had as is provided in applications for divorce.'

This act was amended by Acts 1937, Ch. 23, § 1, p. 136 in its present form. In both the original and the amended act jurisdiction of an action to annul a voidable marriage is specifically granted to 'any court having jurisdiction to decree divorces.'

The original act establishing the East Chicago City Court was approved March 10, 1921, Acts 1921, Ch. 215, § 1, p. 587. It was amended in its present form on March 4, 1943, Acts 1943, Ch. 121, § 1, p. 373. In both the original, and the amended act jurisdiction of actions for divorce is expressly denied to this court. We find no conflict between § 4-2701, Burns' 1946 Repl. supra and § 44-106, Burns' 1940 Repl. supra. It thus appears conclusively that the East Chicago City Court was and is without jurisdiction to entertain an action to annul a voidable marriage, and therefore, all its action with reference to annulling the marriage of appellant and appellee is void. It was the duty of the trial court to so treat it.

Appellant in support of his position, that the East Chicago City Court has jurisdiction of an action to annul a voidable marriage cites the following cases: Christlieb v. Christlieb, 1919, 71 Ind.App. 682, 125 N.E. 486, 487, where the court by way of dicta said, 'Courts of equity, under their general powers to annul fraudulent contracts, also have jurisdiction to annul a marriage on account of fraud.' In that case the action was filed and tried in a circuit court and, of course, no jurisdictional question was before the court. Henneger v. Lomas, 1896, 145 Ind. 287, 299, 44 N.E. 462, 32 L.R.A. 848, in which appellant, after her divorce from appellee, brought suit against him to recover damages for her own seduction. In the course of a seventeen page opinion, Chief Justice Monks, likewise by dicta, on page 299, of 145 Ind., on page 466 of 44 N.E., said: 'Courts having the jurisdiction of courts of equity, under the general power to annul fraudulent contracts, have also jurisdiction to annul a marriage on account of fraud.' In ...