Southern Indiana Ry. Co. v. Indianapolis & L. Ry. Co.

• Decision Date: 24 April 1907
• Docket Number: No. 20,827.,20,827.
• Citation: 81 N.E. 65,168 Ind. 360
• Parties: SOUTHERN INDIANA RY. CO. et al. v. INDIANAPOLIS & L. RY. CO.
• Court: Indiana Supreme Court

168 Ind. 360

81 N.E. 65

SOUTHERN INDIANA RY. CO. et al.

v.INDIANAPOLIS & L. RY. CO.

No. 20,827.

Supreme Court of Indiana.

April 24, 1907.

Appeal from Circuit Court, Owen County; Jos. W. Williams, Judge.

Condemnation proceedings by the Indianapolis & Louisville Railway Company against the Southern Indiana Railway Company and the Equitable Trust Company. From a judgment for plaintiff, defendants appeal. Reversed as to the Southern Indiana Railway Company. Affirmed as to the Equitable Trust Company.

Willis Hickam, E. C. Ritsher, W. T. Abbott, and S. R. Hamill, for appellants. E. C. Field and H. R. Kurrie, for appellee.

GILLETT, J.

On the 14th day of March, 1906, appellee filed its instrument of appropriation or complaint, as it is termed by the act of 1905 (Acts 1905, p. 59, c. 48; section 893 et seq., Burns' Ann. St. Supp. 1905), to condemn, as and for a railroad right of way, a strip of land about nine miles in length, in Owen county. Appellant the Southern Indiana Railway Company was made a defendant to the proceeding, as the owner of the real estate, while its codefendant, the Equitable Trust Company, was joined as a defendant, as a mortgagee. Appellants first appeared specially, and severally moved to quash the service upon them, respectively; but their motions to quash were overruled. Several objections were then filed by appellants, and the cause was then submitted to the court. During the trial, appellee amended its complaint, and appellants, without demurring, severally addressed objections to the amended complaint, and the trial proceeded. Upon the conclusion thereof, the court rendered a finding for appellee that it was entitled to have the lands described in the amended complaint condemned and appropriated for the location, construction, and operation of its railroad, and the court thereupon appointed appraisers to assess the damages. From such interlocutory order this appeal is prosecuted.

The first question which we are called on to consider is the service upon appellant the Southern Indiana Railway Company. The return of the sheriff on the notice is as follows: “I served this notice this 15th day of March, 1906, by reading the same to -, agent of the Southern Indiana Railway Company, and by leaving with him a certified copy thereof.” By section 3 (page 61) of the act of 1905, the notice is required to be served in the same manner as a summons in a civil action, and therefore we look to section 318, Burns' Ann. St. 1901, for the controlling provision as to service upon a corporation. It was pointed out in Toledo, etc., R. Co. v. Owen, 43 Ind. 405, under a section of the former Code substantially similar to section 318, supra, that the section fixes three grades of persons upon whom service may be had, and the court then added: “When the service under this section is upon an officer or person of the second or third grade, it should appear that the officer or officers of the higher grade or grades were not found in the county. Unless this shall appear by the return, or in some other proper manner, the service will be insufficient.” It therefore appears to us that a return which not only fails to meet this requirement, but which even fails to show either the name of the agent or the character of his agency, should be held insufficient, if directly and seasonably questioned. If there has been absolutely no service upon an agent or person upon whom the statute authorizes service in the particular circumstances, we do not perceive how the matter can be said to be cured by section 319, Burns' Ann. St. 1901, for that section presupposes that there has been at least some kind of service upon the party. Appellee's counsel seek to parry the effort to procure a reversal as to the Southern Indiana Railway Company, by the contention that the assignment of errors is joint as to the appellants. The introductory part of such assignment is as follows: “The appellants, the Southern Indiana Railway Company and the Equitable Trust Company both jointly say, and each of them severing from the other separately and severally says, that there is manifest error in the judgment and proceedings in this cause, and in the making and entering of record of the interlocutory order by the court, in this”-then follows a number of specifications of error, separately numbered. The argument advanced by counsel for appellee is that this assignment merely questions the rulings of the trial court in each of the particulars which followed the language above quoted, but as appellants not only jointly, but “each of them severing from the other,” assigns error, it appears to us that there is no basis for the claim that the assignment is merely joint as to parties. It is, as we view it, separate as to appellants, by reason of the words of severance, and the remaining language is sufficient to show that the ruling embraced in the assignment is separately questioned. Sibert v. Copeland, 146 Ind. 387, 44 N. E. 305;Armstrong v. Dunn, 143 Ind. 433, 41 N. E. 540;Carver v. Carver, 97 Ind. 497; Ewbank's Manual, § 138. It follows, from what we have said, that, because of the error of the court in refusing to quash the service as to the Southern Indiana Railway Company, the cause must be reversed as to it.

The Equitable Trust Company, whom we shall hereafter designate as the appellant, since it is the only party appellant which is concerned in what follows, contends that the court erred in refusing to set aside the notice and quash the publication as to it. Said appellant being a nonresident, service was attempted to be procured upon it by publication. The hearing was fixed for April 5, 1906, and publication was had as to appellant on the 15th, 22d, and 29th days of March, 1906. It is contended that there should have been a publication for the full period of 21 days, and that five days should have elapsed between the period of publication and the day set for the hearing. Section 4 of the act of 1905 (Acts 1905, p. 61, c. 48; section 896, Burns' Ann. St. Supp. 1905) provides that the proof of service by publication shall show “publication for three successive weeks in a weekly newspaper of general circulation, *** the last publication to be five days before the day set for the hearing.” This certainly does not require four publications, and as the hearing may be set, according to the statute, five days after the last publication, it appears to us that the lawmaking power must have intended, by requiring proof of publication for three successive weeks in a weekly newspaper, three publications in a weekly newspaper on its weekly days of issue, and that it regarded that as “publication for three successive weeks.” Bachelor v. Bachelor, 1 Mass. 256;Swett v. Sprague, 55 Me. 190;Alexander v. Alexander, 26 Neb. 68, 41 N. W. 1065. Any other construction would mean that at least 11 days must elapse after the third publication. Besides, as the service was not questioned under a special appearance, except by a motion to set aside the notice and quash the publication, it must be held that there was no error in the court's ruling, for at the least the service would have been sufficient for the regular return day of the next term, and therefore the defect, if any, afforded only a ground for delaying the hearing. See Bratton v. Bratton, 79 Ind. 588. The description of the land, as set forth in the publication, was not insufficient because it did not in terms state that the land was in Owen county, Ind. The description showed the congressional township and range, so that land of that description could be located, if in Indiana, and when to this fact is added the further consideration that the statute requires that the action should be commenced in the county where the land lies, it is apparent that the notice was sufficient as to the description of the lands. See White v. Stanton, 111 Ind. 540, 13 N. E. 48;Hyland v. Brazil, etc., Co., 128 Ind. 335, 26 N. E. 672.

It is objected that the complaint on its face discloses that appellee was seeking to condemn property which was already devoted to a public use. The complaint shows that appellee is seeking to take but a part of the real estate of the Southern Indiana Railway Company. How much will remain is left to conjecture. It may be inferred, from an offer in the complaint, that the Southern Indiana Railway Company had in contemplation the building of a railroad over its adjacent lands, but the pleading falls far short of showing on its face what amounts to a legal location of a railroad on such lands.

The offer above referred to is also made the basis for an attack upon the complaint; the objection being for the first time raised by an assignment of error questioning the sufficiency of said complaint. It avers the intent of appellee to appropriate the lands, which are specifically described, and, after averring that the right of way strip does not include the whole of the land of the owner, it is stated: “That the appropriation of the right of way herein described is made subject to the defendant railway's right to join its roadbed when built up to and against the roadbed constructed by the plaintiff. If the defendant elects to construct its roadbed at some future day up to and against the roadbed of plaintiff, it shall first pay to plaintiff the actual cost to it of any right of way taken from the plaintiff for said purposes, together with the actual cost of so much of plaintiff's roadbed and construction work as said defendant may use, and would otherwise be required to construct.” We are of opinion that it cannot be so clearly affirmed from the complaint that there was no intent to appropriate, except as the conditions annexed were made a constituent part of the taking, that it can be said that the offer operated to drag down the whole cause of action. There are many objections which might be available on demurrer that cannot for the first time be raised on appeal. Where they are sought to be...