Rehman v. The New Albany Belt And Terminal Railroad Company
| Decision Date | 07 November 1893 |
| Docket Number | 861 |
| Citation | 35 N.E. 292,8 Ind.App. 200 |
| Parties | REHMAN v. THE NEW ALBANY BELT AND TERMINAL RAILROAD COMPANY ET AL |
| Court | Indiana Appellate Court |
From the Floyd Circuit Court.
C. L Jewett and H. E. Jewett, for appellant.
A Dowling, for appellees.
OPINION
The appellant, by her complaint, seeks to recover damages from the appellees, for injury to her property and business alleged to have resulted from the building, maintaining, and operating of an elevated railroad along and upon Upper Water street in the city of New Albany. To the complaint, the appellees filed separate pleas in abatement, in which it was alleged that another action against the appellee The New Albany Belt and Terminal Railroad Co. was begun by the appellant prior to the bringing of this action, alleging the same cause of action here declared on, which action was still pending, and for which reason they asked that this action abate. Demurrers to these pleas were filed and overruled, and the appellant replied by a general denial. Upon the issue formed on the pleas in abatement, the cause was submitted to the court for trial, and after hearing the evidence, the court, at the request of the parties, made a special finding of the facts, with conclusions of law thereon. Judgment was rendered on the facts found, in favor of the appellees, abating the action, and the appellant, from that judgment, prosecutes this appeal.
The appellant has assigned, in this court, three errors, the first and second of which call in question the ruling of the court on the demurrers to the pleas in abatement.
A plea in abatement, based upon the pendency of another action, in order to be sufficient as such, must show not only that such other action is for the same cause of action, but also that it is between the same parties. De Armond v. Bohn, 12 Ind. 607; Loyd v. Reynolds, 29 Ind. 299; Dawson v. Vaughan, 42 Ind. 395; Merritt v. Richey, 100 Ind. 416; Bryan v. Scholl, 109 Ind. 367, 10 N.E. 107.
By the statement, "between the same parties," is not meant that both actions shall be brought by the same plaintiffs against the same defendants only. If the same plaintiffs bring two actions, at different times, upon the same cause of action, the first one instituted being against a single defendant, and the second being against the defendant in the prior action, and also against another joined as a defendant, the action will, so far as the defendant who is a party defendant to both actions, be between the same parties, and the second action as to him, by reason of the pendency of the prior action, may be abated. Atkinson v. State Bank, Assignee, etc., 5 Blackf. 84.
We think the answer in abatement of the appellee The New Albany Belt and Terminal Railroad Co. is good, and there was no error in overruling the demurrer thereto. The answer in abatement of the Kentucky and Indiana Bridge Co. is not good, and the court erred in overruling the demurrer to it.
This answer, while it is exactly the same as the one filed by the New Albany Belt and Terminal Railroad Co., and as to that company stated facts sufficient, does not state facts sufficient to abate this action as to said Kentucky and Indiana Bridge Co., for the reason that the facts alleged that no prior action is pending against it for the same cause of action. There is nothing in its plea to show that any such relation exists between it and its codefendant that an adjudication in the former action, either for or against said New Albany Belt and Terminal Railroad Co., would be an adjudication of its liability in this action. The appellant may have a cause of action, and recover against the appellee The New Albany Belt and Terminal Railroad Co. in the previous action, and yet, while such recovery would be a bar to a recovery against it, in this action, that judgment does not necessarily bar a recovery against said Kentucky and Indiana Bridge Co. in this action.
The facts found by the court are as follows:
First. That on the 17th day of November, 1890, the plaintiff, Margaret Rehman, filed her complaint and application for writ of assessment of damages, in the Floyd Circuit Court, in and for the county of Floyd and State of Indiana, claiming and alleging in such complaint and application that she was the owner in fee-simple of real estate in the city of New Albany, Floyd county, Indiana, described as follows: Beginning at the southeast corner of lot number sixteen (16), on Upper Water street, running thence westwardly along the front line of lots sixteen (16) and fifteen (15), one hundred and twenty (120) feet, and extending southwardly between parallel lines of the same width of one hundred and twenty (120) feet, to the bank of the Ohio river at low water mark.
Alleging that the defendant was a railroad corporation engaged in the construction of a steam railroad through a part of the city of New Albany, the line of which is surveyed, laid out and projected, passed over and along the plaintiff's real estate aforesaid.
Alleging that on the first day of August, 1890, and on divers other days between that day and the time of filing such application, the said railroad company entered upon, fixed, located, and established its line of steam railroad over and upon the real estate of the plaintiff above described, and appropriated to its own use a strip of said real estate fifty (50) feet wide, extending from the east line thereof to the west line thereof, thereby rendering the remainder of said real estate useless and of no value to said plaintiff.
Alleging that the defendant ever since maintained its line of railroad on said real estate, and that it appropriated the same, and wholly excluded the plaintiff from all benefit and use thereof, and that the said strip of land was appropriated by the defendant by virtue of the provisions of section 3907, of the Revised Statutes of the State of Indiana.
Alleging, that the real estate so taken by the defendant is, and was, at the time it was appropriated, of the value of four thousand dollars ($ 4,000), and that by reason of its appropriation the real estate of the plaintiff had been damaged in the sum of four thousand dollars ($ 4,000), and that such damages were due and unpaid, and that no damages had ever been assessed, tendered or paid to the plaintiff by the defendant; that in and by said complaint and application the plaintiff prayed the court that a writ of assessment of damages might issue to the sheriff of Floyd county, pursuant to the statute in such cases, and that her damages might be assessed, and that she have judgment therefor.
Second. That on the same day a writ of assessment of damages, in due form, was issued out of the said court, sealed with the seal and signed and attested by the clerk of said Floyd Circuit Court, addressed to the sheriff of Floyd county, reciting the facts of the application of the said Margaret Rehman for such writ, and commanding the sheriff to impanel a jury of six disinterested freeholders of the county of Floyd to meet upon the land and real estate described in the application, and belonging to the said Margaret Rehman, on a day to be fixed by said sheriff, and there to proceed to cause the damages of the said Margarat Rehman to be assessed as provided by law; and further requiring the said sheriff to give ten days' notice to the said New Albany Belt and Terminal Railroad Co., and to the said Margaret Rehman, of the time and place where said jury were to meet to assess the damages above mentioned.
Third. That the said sheriff, in pursuance of the command of the said writ, did fix the 29th day of November, 1890, at ten o'clock, A. M., as the time when the jury named in said writ should meet upon the real estate therein described, to assess the damages of the plaintiff; and that the said sheriff gave notice to the said plaintiff and the said defendant of the time and place when and where such assessment would be made, more than ten days before the time fixed for the meeting of said jury; that the said sheriff did, on the day fixed for such assessment, summon a jury of six persons, who were disinterested freeholders of the county of Floyd, and not owning land within one mile of the railroad described in the said application; that the said jury did, on the said 29th day of November, 1890, after being duly sworn and charged by the sheriff, proceed to make an assessment of the damages alleged to have been sustained by the plaintiff, and that they then and there assessed her charges for the real estate taken by the defendant, at the sum of six hundred dollars ($ 600), and they then and there assessed the damages sustained by the plaintiff by reason of the construction of the defendant's railroad over and along her real estate, at twenty-four hundred and forty dollars ($ 2440); that the said writ was returned into the circuit court by said sheriff on the first day of December, 1890; that on the 9th day of December, 1890, the defendant company filed its exceptions and objections to the said proceedings, assessment, and return; that on the 26th day of December, 1890, the plaintiff filed her reply thereto, and that the said proceeding is yet pending in the said Floyd Circuit Court.
Fourth. That on the 4th day of September, 1891, the said plaintiff, Margaret Rehman, filed her complaint in the Floyd Circuit Court, against the defendants, the New Albany Belt and Terminal Railroad Company, and the Kentucky and Indiana Bridge Company, wherein and whereby she alleges that she, the said plaintiff, owned and occupied as a residence and boarding-house a large dwelling situated on said lot No. 16, on the corner of Upper Fourth and Water streets, in the city of New Albany.
Alleging that said Water street was a...
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