State ex rel. Joint County Park Bd. of Ripley, Dearborn and Decatur Counties v. Verbarg

• Decision Date: 01 May 1950
• Docket Number: No. 28667,28667
• Parties: STATE ex rel. JOINT COUNTY PARK BOARD OF RIPLEY, DEARBORN AND DECATUR COUNTIES v. VERBARG et al.
• Court: Indiana Supreme Court

Page 916

91 N.E.2d 916

228 Ind. 280

STATE ex rel. JOINT COUNTY PARK BOARD OF RIPLEY, DEARBORN AND DECATUR COUNTIES v. VERBARG et al.

No. 28667.

Supreme Court of Indiana.

May 1, 1950.

Paul V. Wycoff, Batesville, Ewing E. Wright, Osgood, Amos W. Jackson, Versailles, for relator.

Joseph W. Verbarg, for respondents.

EMMERT, Judge.

This is an original action for an alternative writ of mandamus to require the trial court to comply with a previous mandate of this court made in Joint County Park Board of Ripley, Dearborn, and Decatur Counties v. Stegemoller, 1949, 88 N.E.2d 686. The opinion on the petition for rehearing did not modify the original mandate. Ind.Sup., 89 N.E.2d 720. The mandate reversed the judgment and instructed the trial court to vacate the ruling sustaining objections numbered 3, 4, 5, and 6, 'and to take further proceedings in such matter consistent with this opinion.'

It appears from the exhibits to the petition in this original action that upon the receipt of the mandate the trial court did vacate its judgment, and also vacated the rulings sustaining objections numbered 3, 4, 5, and 6, in full compliance with our mandate. However, petitioner herein insists that full compliance with our mandate 'to take further proceedings in such matter consistent with this opinion' requires that the trial court overrule each of these objections as requested by petitioner. This the trial court has not done, nor has it made any ruling upon defendants' motion for leave to amend their objections.

The correctness of our decision in the former appeal is not now open to question, since what was there decided, whether right or wrong, becomes the law of the case in all subsequent proceedings. State ex rel. Mavity v. Tyndall, 1947, 225 Ind. 360, 74 N.E.2d 914; Kist v. Coughlin, 1944, 222 Ind. 639, 57 N.E.2d 199, 586; New York Life Ins. Co. v. Kuhlenschmidt, 1940, 218 Ind. 404, 33 N.E.2d 340, 135 A.L.R. 397; Collins v. Siegel, 1938, 214 Ind. 206, 14 N.E.2d 582; Rooker v. Fidelity Trust Co., 1931, 202 Ind. 641, 177 N.E. 454; Chicago & Erie R. Co. v. Dinius, 1913, 180 Ind. 596, 103 N.E. 652; Kahle v. Crown Oil Co., 1913, 180 Ind. 131, 100 N.E. 681; Currier v. Elliott, 1895, 141 Ind. 394, 39 N.E. 554.

In the previous appeal we restated the well established rule that under § 3-1705, Burns 1946 Replacement, the statutory objections were to be in legal effect either demurrers or answers, but that the same objection could not serve as both a demurrer and an answer. A strict adherence to this fundamental law distinguishing a demurrer from an answer must be observed if difficulty is to be avoided in the making of issues in a condemnation action.

In Toledo & Indiana Traction Co. v. Toledo C. I. R. Co., 1908, 171 Ind. 213, 86 N.E. 54, this court clearly recognized the distinction between an objection which served the purpose of a demurrer, and an objection which constituted an answer. The plaintiff in the trial court had filed a motion to strike out defendant's objection number 10, and the motion to strike was treated by the trial court as performing the office of a demurrer, which was sustained, and this ruling was assigned as error upon appeal. This court stated that if the plaintiff 'desired to test the sufficiency of this pleading in respect to the facts therein alleged, it should have demurred, as provided by the Code, to an answer of a defendant in a civil action.' 171 Ind. at page 224, 86 N.E. at page 58. Judge Montgomery filed a separate concurring opinion in which he disagreed 'with so much of the opinion as sanctions the practice of demurring to an objection to a complaint in condemnation proceedings.' 171 Ind. page 237, 86 N.E. page 63. In Joliff v. Muncie Electric Light Co., 1914, 181 Ind. 650, 105 N.E. 234, this court affirmed a judgment of the trial court which had sustained demurrers to nineteen separate objections, and in Clinton Coal Co. v. Chicago & E. I. R. Co., 1921, 190 Ind. 465, 130 N.E. 798, this court affirmed the ruling of the trial court sustaining demurrers to five separate objections without any suggestion that the practice was improper. The well considered case of Cottrell v. Chicago T. H. & S. E. R. Co., 1923, 192 Ind. 692, 138 N.E. 504, is of value in considering the procedural question involved. It was there held that, (1) a general denial of facts alleged in the petition, (2) specific denials of particular facts alleged in the petition, and, (3) denials of certain conclusions of law which necessarily follow if the facts alleged in the petition stated a cause of action, were insufficient when tested by demurrers, which procedure was necessarily approved by the affirmance of the judgment of the trial court. In that case the trial court heard evidence on the issues formed by other objections to which no demurrer had been filed. Since a demurrer is a proper way to test the legal sufficiency of an objection which is an answer, it logically follows that such an objection should not be overruled, in the absence of evidence thereon, without its legal sufficiency being tested by a demurrer thereto.

The opinion and the transcript in Westport Stone Co....