Smith v. State, ex rel. Hamill
| Decision Date | 20 February 1895 |
| Docket Number | 17,116 |
| Citation | 39 N.E. 1060,140 Ind. 343 |
| Parties | Smith et al. v. State, ex rel. Hamill, Prosecuting Attorney |
| Court | Indiana Supreme Court |
From the Vigo Circuit Court.
Judgment affirmed.
W. Mack and R. G. Smith, for appellants.
G. A Knight and M. C. Hamill, for appellee.
The appellee, on the relation of the prosecuting attorney commenced this proceeding by filing an information in the nature of a quo warranto under the third subdivision of section 1145, 1 Burns R. S. 1894 (R. S. 1881, section 1131), charging the appellants with acting as a corporation under the name of the Brazil Electric Street Railway Company without being legally incorporated.
Upon the issues formed, there was a trial by the court, resulting in what the appellants call a special finding of the facts, upon which conclusions of law are stated. There was a judgment of ouster enjoining them from so acting in the future.
The errors assigned here call in question the jurisdiction of the court over the subject of the action, the court's action in overruling a demurrer to each of the two paragraphs of the information, in striking out appellants' answer in abatement, in permitting appellee to withdraw its motion for judgment on the state of the pleadings, in its conclusions of law, in overruling appellants' motion for judgment in their behalf upon the findings, in overruling the appellants' motion for a new trial, in overruling appellants' motion in arrest of judgment, and in overruling appellants' objection to the judgment.
At the threshold of the case we are met with a motion by appellants, supported by the affidavit of one of them, setting forth a great variety and circumlocution of facts, arguments and persuasions, some of which impute bad faith to the prosecuting attorney in instituting the suit, and many of which might have had more or less bearing on the trial of the cause in the court below, but none of them had any bearing on the jurisdiction of the trial court; and on account of fraud practiced in persons not parties to this suit, and on account of all these matters, this court is asked to reverse the judgment of the trial court on the alleged ground that these facts show that the trial court had no jurisdiction. Fraud in the conduct of the prosecuting attorney and his assistant in the institution and prosecution of the suit, it is claimed, affected the jurisdiction of the trial court. It may not be improper to observe that the charges of bad faith and fraud in the institution and prosecution of the suit are overwhelmingly contradicted by numerous counter-affidavits filed here. It is not claimed by appellants that the controversy is not a real one, and is a mere fiction. It has been held that where the suit in the trial court was a mere fiction and not a real controversy, but was instituted for the mere purpose of getting the opinion of the court on a point of law, that this court will, when it so appears by the admission of the parties, dismiss the appeal. Smith v. Junction Railway Co., 29 Ind. 546; Brewington v. Lowe, 1 Ind. 21; Hotchkiss v. Jones, 4 Ind. 260.
Counsel have cited no authority justifying a reversal of a judgment in this court on ex parte affidavits regardless and independent of the assignment of errors, and we know of no such authority. On the contrary, it has been recently held by this court that on an appeal to a court for the correction of errors of law, nothing can be considered on such appeal for the purpose of reversal, but those matters of error presented by the assignment of errors, and only in matters of law exclusively. Voorhees v. Indianapolis Car and Mfg. Co., 140 Ind. 220, 39 N.E. 738.
The first specification of error is urged on the ground that the Vigo Circuit Court had no jurisdiction of the subject-matter of the action, that being one of the grounds of the demurrer to the complaint.
It is contended that the action as to venue and jurisdiction is governed by section 308, 1 Burns R. S. 1894 (R. S. 1881, section 307); and it is further contended that it appears that the usurping corporation had a freehold interest in the streets of Brazil, and that being in Clay county the Vigo Circuit Court had no jurisdiction of the subject-matter under the section of the statute cited. That section, it is true, provides that actions to recover possession, for partition, and for the foreclosure of a mortgage of real property must be commenced in the county where the subject of the action or some part thereof is situate. But this was not an action for either of those purposes, but, as before observed, it was a proceeding on an information filed by the prosecuting attorney in the nature of a quo warranto. It did not involve any of the subjects specified in the section quoted.
No question of jurisdiction was presented by that specification in the demurrer.
The first paragraph of the information states "that the * * defendants, without having been incorporated, are, and have been since the 6th day of December, 1892, usurping the franchise of being a corporation under and by the name of the Brazil Electric Street Railway Company, and by that name of pleading and being impleaded, answering and being answered in the Clay Circuit Court of Indiana, contracting and being contracted with, and of attempting to acquire, hold and use certain streets in the city of Brazil, Clay county, Indiana, for the purpose of constructing, maintaining and operating a street railway therein and thereover."
We think this was a sufficient statement that the appellants were acting as a corporation without being incorporated, and that they so acted within the State of Indiana. See Mud Creek, etc., Co. v. State, ex rel., 43 Ind. 236; State, ex rel., v. Kingan, 51 Ind. 142; Board, etc., v. Hall, 70 Ind. 469; 2 Waterman Corp., section 385, p. 752.
The second paragraph stated the same causes for ousting the would-be corporation that were stated in the first paragraph, and added thereto other supposed causes.
This made the paragraph sufficient to withstand the demurrer for want of sufficient facts, whether the additional causes were sufficient or not.
The next specification of error urged is, the action of the trial court in striking out appellants' answer in abatement. Pleadings and other papers that are stricken out can only become, or be made, a part of the record by bill of exceptions. Carrothers v. Carrothers, 107 Ind. 530, 8 N.E. 563; Stott v. Smith, 70 Ind. 298; Berlin v. Oglesbee, 65 Ind. 308; Hill v. Jamieson, 16 Ind. 125; Ammerman v. Crosby, 26 Ind. 451; Schmidt v. Colley, 29 Ind. 120; Scott v. Board, etc., 101 Ind. 42.
When the motion to strike out the answer in abatement was sustained, the court ga...
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