Rush v. Foos Manufacturing Company
| Citation | 51 N.E. 143,20 Ind.App. 515 |
| Decision Date | 29 June 1898 |
| Docket Number | 2,528 |
| Parties | RUSH ET AL. v. FOOS MANUFACTURING COMPANY |
| Court | Court of Appeals of Indiana |
From the Marion Superior Court.
Reversed.
William A. Ketcham and Frederick E. Matson, for appellant.
J. E Scott and Albert Rabb, for appellee.
Appellants sued appellee to recover damages for the alleged failure of a warranty, made by appellee to appellants, upon a cob-grinding machine purchased by the latter from the former. Summons was issued and served on J. F. Winchell, superintendent of appellee. Appellee appeared specially and moved to quash the return to the summons, which motion was overruled. Appellee still appearing specially, filed its plea in abatement. In this plea it was averred that appellee was a corporation organized and existing under the laws of Ohio; that its principal office was in Clarke county, Ohio; that it was not, and is not incorporated in Indiana; that it did not and does not now, maintain any office in Indiana, and that its officers were then and now are, nonresidents of the State of Indiana, and did then and do now, reside in Springfield, Ohio; that said Winchell, upon whom said summons was served, was not at the date of said service, nor has he since been a resident of Indiana, and that he did then and does now, reside in Ohio; that he was then and is now an employe of appellee under the title of superintendent; that he is called superintendent because he has general supervision of the mechanical departments and processes,--the appellee being engaged in the manufacture of certain agricultural implements, etc.; that when said summons was served, said Winchell was temporarily in Indianapolis, Indiana, but was not then or at any time during his temporary stay in Indiana engaged in the transaction of business for appellee, in any manner connected with the cause of action mentioned in the complaint.
The appellants demurred to the plea in abatement on the ground that it did not state facts sufficient to abate the action, which demurrer was overruled. Appellants elected to stand on the demurrer, and suffered judgment against them for costs. The ruling on the demurrer is the only error assigned. It is urged by appellee that the complaint does not state any cause of action against it, and hence if it was error to overrule the demurrer to its plea in abatement, such error is harmless. Such a rule does prevail in this State, but it is not applicable here, for the reason that as the record comes to us we can not determine the sufficiency of the complaint. The rule is firmly established in this State that the appellate tribunal will not consider any question on appeal that has not been presented to the lower court for its ruling. To this general rule there is an exception, and that is where issues have been made and the sufficiency of the complaint has not been tested by demurrer, the cause tried on its merits and judgment pronounced, then on appeal, by proper assignment of error, this court may pass upon the sufficiency of the complaint. After pleading to the merits of a cause, the sufficiency of the complaint is, until its final disposition, before the court; but where there has been no pleading to the merits of a cause, but only a plea in abatement which challenges the jurisdiction of the court as to the person of the defendant, the sufficiency of the complaint is not thereby presented to the court below, either directly or indirectly.
If the rule prevailed for which appellee contends, it would indeed be summary, and might in many instances work great hardships and harsh injustice. No difference how meritorious his right of action, if he had by oversight or otherwise, failed to state a cause of action, he would thus be deprived of the liberal and wholesome rule to answer, recognized in this State by the statute and the courts. Where a defendant has answered as to the merits of a cause, and his answer is attacked by a demurrer, such demurrer reaches the entire record, and may be carried back to the complaint, and the complaint declared insufficient, and the plaintiff, within such time as the court may prescribe, amend his complaint. But not so here. A demurrer to a plea in abatement does not reach the record, and can not be carried back and sustained to an insufficient complaint, and as there is no cross-error assigned here, calling in question the sufficiency of the complaint, we can not consider it. This exact question has been decided in this and in other states. A plea in abatement is not addressed to the complaint, and this is reason enough why a demurrer to it can not be carried back to the complaint. In 6, Enc. Plead. Prac., page 332. it is said: "A demurrer to a plea in abatement, or to an answer in abatement, as it is sometimes called, does not reach defects in a declaration." Crawford v. Slade, 9 Ala. 887; Rogers v. Smileg, 2 Porter (Ala.) 249; Knott v. Clements, 13 Ark. 335; Wade v. Bridges, 24 Ark. 569; Vaden v. Ellis, 18 Ark. 355; State v. Hamlin, 47 Conn. 95, Ryan v. May, 14 Ill. 49; Price v. Grand Rapids, etc., R. R. Co., 18 Ind. 137; Indiana, etc., R. W. Co. v. Foster, 107 Ind. 430, 8 N.E. 264; Anderson Building, etc., Ass'n v. Thompson, 88 Ind. 405; Clifford v. Cony, 1 Mass. 495; Dean v. Boyd, 9 Dana (Ky) 169; Shaw v. Dutcher, 19 Wend. (N.Y.) 216; Ellis v. Ellis, 4 R.I. 110; Myers v. Erwin, 20 Ohio 381. In Indiana, etc., R. W. Co. v. Foster, supra, there was a plea to the jurisdiction of the court, to which a demurrer was filed and overruled. On appeal, appellant insisted that the complaint was not good, and asked the court to carry the demurrer to the plea in abatement back to the complaint. The court by Zollars, J., said: See, also, Price v. Grand Rapids, etc., R. R. Co. supra, and Anderson Building, etc., Assn. v. Thompson, supra.
We come now to the only question properly presented by the record, and that is the sufficiency of the plea in abatement. The real question is, does the plea in abatement state facts sufficient to show that the Marion Superior Court did not acquire jurisdiction over appellee? If it does, then the court correctly sustained the demurrer. A plea in abatement is a dilatory plea, and it is not regarded favorably by the courts. It must be definite and certain, and nothing can be supplied by intendment or construction. The plea must not only state facts necessary to the answer, but must also anticipate and exclude all such supposable matter as would, if alleged, on the opposite side, defeat his plea. In 1 Chitty Pl. 473 (16 Am. ed.), it is said: In Stephen Pl. 352 (9 Am. ed.) it is said: Dilatory pleas are regarded unfavorably by the courts as having the effect of excluding the truth, and therefore they "must be certain in every particular; which seems to amount to this, that they must meet and remove by anticipation every possible answer of the adversary." And at page 431, it is said: "The plea must, at the same time, correct the mistake, so as to enable the plaintiff to avoid the same objection, in framing his new suit or declaration."
Gould on Pl., in speaking of the certainty required in pleas in abatement, says: Gould's Pl. sec. 57. These elementary rules as to pleas in abatement have been adopted and carried into our jurisprudence by the courts. Board, etc., v LaFayette, etc., R. R. Co., 50 Ind. 85, 117; Kelley v. State, 53 Ind. 311; Needham v. Wright, 140 Ind. 190, 39 N.E. 510. It will be observed that in the plea in abatement, it is not denied that the cause of action did not arise in this State; neither does it deny that the appellee corporation has property within this State; nor is there any averment that it is not doing business in the State where jurisdiction was sought to be acquired, and lastly, it is not denied that the officer of appellee, upon whom service was had, was at the time within the State as the agent and representative of appellee, and engaged in the transaction of business for it. It is averred that he was not here "engaged in the transaction of business for this defendant in any manner connected with the cause of action mentioned in the complaint." We must, under the well established rule, construe this pleading most strongly against the pleader, and in determining whether or not there was error in the ruling on the demurrer to the plea in abatement, we must assume that all these enumerated facts, so far as they may benefit the appellant, to be true. There are...
To continue reading
Request your trial