State ex rel. Goodwine v. Cadwallader

Decision Date11 March 1909
Docket Number21,139
Citation87 N.E. 644,172 Ind. 619
PartiesThe State of Indiana, ex rel. Goodwine, v. Cadwallader
CourtIndiana Supreme Court

Rehearing Denied October 5, 1909, Reported at: 172 Ind. 619 at 644.

From Fountain Circuit Court; Lucas Nebeker, Special Judge.

Action by The State of Indiana, on the relation of Frank J Goodwine, against Ira Cadwallader. From a judgment for defendant, plaintiff appeals.

Affirmed.

Charles R. Milford, for appellant.

McCabe & McCabe, for appellee.

OPINION

Myers, J.

Appellant 's relator instituted this action in the Warren Circuit Court on January 23, 1907, by a complaint in two paragraphs, and then filed an affidavit for a change of venue from that county, pending which, defendant filed a demurrer for want of facts to constitute a cause of action, to each paragraph of the complaint. The venue was changed to Fountain county, where such demurrer was sustained, and exception reserved by relator, and on his motion, third and fourth paragraphs of complaint were filed in that court. A demurrer for want of facts, addressed to each additional paragraph of complaint, was sustained and exception reserved; and, refusing to plead further, judgment was rendered that relator take nothing by his complaint, and for costs. Error is assigned as to each of these rulings.

Appellant here states that his whole case "is set forth in paragraphs three and four of the complaint," so that we have not considered the first and second paragraphs.

The substance of the third paragraph of complaint is that appellant's relator and appellee are separate owners of individual telephone exchanges in the town of West Lebanon, Indiana, established under public franchises granting the use of the streets and alleys of that town, and the public highways leading therefrom, and holding themselves out to the public as operators of telephone exchanges for hire without discrimination; that their plants have for more than two years been physically connected, so that the patrons of each could converse directly through their respective exchanges; that this arrangement was made under a verbal contract, called a "working agreement," that each would render telephone service to the patrons of the other, both local and toll, through their respective exchanges, the consideration of which agreement was the mutual rendition of service to the patrons of each other, both local and toll, except as to the use of the toll line between West Lebanon and Danville, Illinois, owned by appellee, as to which there was a later contract between the parties, partly written and partly oral, by which appellee was to serve relator's patrons, and the prices of service to be charged by each were fixed, and relator was to pay appellee fifty per cent of the revenue received by relator from his patrons; that there was no agreement as to terminating the first agreement under which the connection was made or as to how long it should continue; that the service had been furnished for two years, but the contract as to Danville, Illinois, provided that either party might terminate it on thirty days' notice; that relator had 250 patrons and appellee 150 patrons in West Lebanon and the surrounding country; that each of them had long distance connection with several other towns, but neither had such connection with the same towns, so that each was dependent upon the other for connection with those towns, and they had for two years furnished direct service to those towns through their respective exchanges; that they were competitors for business, and the exchanges in the other towns were competitors with them in the same business in the towns and in the country surrounding them, and they had numerous connections with other exchanges and towns, and in the country around those towns, all operating under public franchises; that appellee's exchange has connection with Williamsport, Ambia and Boswell, towns having, respectively, populations of 1,200, 600 and 1,000, and telephone patrons to the number of 375, 250 and 400, respectively, with none of which relator had telephone connection, and his patrons, and the patrons of the exchanges of those towns, were served through appellee's exchange, through which the connection for each of said exchanges and their patrons with each other and with relator's exchange and his patrons was made, and had been carried on for two years before the institution of this action; that large numbers of persons had become patrons through these connections, and an extended telephone connection between the patrons of each built up and established, and that relator had faithfully performed all of his part of the agreement, under which the original connection of the two plants was made, and had been operated for two years; that shortly before the institution of this action a dispute had arisen between relator and appellee as to the amount due to appellee from relator, growing out of the connection with the Danville plant; that relator had tendered the amount he admitted to be due, but appellee refused to receive it, claiming a greater amount, and on December 27, 1906, he served notice on relator of his intention to discontinue service to him and his patrons by a fixed time, unless the amount claimed by him to be due should be paid by that time, and this being refused, and the time having passed, appellee has refused and still refuses to furnish on demand to relator and his patrons the local and toll service to and with points and persons, to and with which and whom appellee could and relator could not otherwise obtain telephone service than through appellee's plant, and that such service was embraced in the original agreement. It is alleged that an offer was made to comply with all reasonable rules and regulations then or thereafter established by appellee for the operation of his plant, showing the inconvenience to the public and special injury to relator as owner of the one plant, demanding damages, and that appellee be required to furnish relator and his patrons service by direct communication through appellee's plant under such rules and regulations as appellee might establish.

The fourth paragraph is substantially the same in its allegations as the third, except that no reference is made to the alleged "working agreement," or the agreement as to the Danville connection, or the notice of December 27, 1906, but is grounded upon the allegations that for more than two years each of them has been, and is now, carrying on the business for hire for the public generally, and holding himself out to the public as ready to serve all without discrimination, and that each is conducting his business under a public franchise from the town of West Lebanon for the use of the streets, alleys, and public places, and on the highways between said town, and adjoining towns and cities; that for more than two years last past the switchboards of the telephone plants of relator and appellee have been connected, and are now connected, by which the patrons of each have interchangeable local, and long distance service, and that during all that time said connection existed with the consent of both parties; that the telephone facilities furnished by the telephone plants in the towns of Ambia, Williamsport and Boswell are substantially the same as those furnished by the parties hereto to their patrons.

Appellee insists that relator presents no question here, by reason of the form of the assignment of error, which is, that "the court erred in sustaining appellee's demurrer to the third paragraph of the relator's complaint," and the same as to the fourth, on the ground that it does not direct the assignment to the specific circuit court in which the ruling was had.

An assignment of error as to a ruling in a designated court presents no question as to an error which may have been committed in another court. Appellee relies on the case of Chicago, etc., R. Co. v. Walton (1905), 165 Ind. 642, 74 N.E. 988, and cases cited, in which it is held that an assignment that the Laporte Superior Court erred in overruling a demurrer, the record showing that the Lake Superior Court alone made the ruling, presents no question. This case does not fall within the rule upon which that case and kindred cases were decided, but within the specific exception stated in the case, and disclosed by the rule in McKeen v. Porter (1893), 134 Ind. 483, 34 N.E. 223.

Appellee has also sought to dismiss the appeal, because, since the judgment was rendered, relator, as disclosed by affidavit, has sold and delivered possession of his telephone plant to a corporation, and has no other interest than as a part stockholder and mortgagee. The affidavit discloses that relator has a mortgage on the tangible property sold. This action is not only to compel appellee to permit the use of his telephone plant and connections by relator, but also for damages, which is an entirely separate and distinct matter from the mandatory relief asked, and it is not pretended that this claim was assigned, if it could be.

Aside from this proposition, the statute itself is controlling. Section 272 Burns 1908, § 271 R. S. 1881, provides that "no action shall abate by the death or disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. * * * In case of any other transfer of interest, the action shall be continued in the name of the original party; or the court may allow the person to whom the transfer is made to be substituted in the action." The motion to dismiss the appeal must be denied. See, also, Tate v. Hamlin (1895), 149 Ind. 94, 41 N.E. 356; Shedd v. Disney (1894), 139 Ind. 240, 38 N.E. 594.

Relator urges the sufficiency of the third and fourth paragraphs of the...

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