State ex rel. Rader v. Lake Circuit Court, 29560
| Citation | 237 Ind. 273,145 N.E.2d 15 |
| Decision Date | 01 October 1957 |
| Docket Number | No. 29560,29560 |
| Parties | STATE of Indiana ex rel. William RADER. Relator, v. LAKE CIRCUIT COURT and Felix A. Kaul, as Judge of the Lake Circuit Court, Respondents. |
| Court | Indiana Supreme Court |
Wendell C. Hamacher, Crown Point, Paul Reed, Knox, for relator.
E. Miles Norton, George E. Hershman, Earl E. Buckley, Crown Point, for respondents.
This is an original action in which the relator, William Rader, asks this court to issue a writ prohibiting the Lake Circuit Court from exercising jurisdiction in cause No. C57-546, entitled Roy Greathouse, Florence Grethouse, Marion Carter, and Henrietta Carter, husband and wife, Elwood B. Fifield v. William Rader.
The action in the Lake Circuit Court was filed on May 22, 1957. It is an action in which the plaintiffs therein asked for a restraining order without notice and a mandatory injunction against the defendant therein, Rader, to prevent him from continuing to maintain a drainage pipe through what is known as Brown Levee, and to compel him to restore the levee and remove certain dams and obstructions in a drainage ditch running parallel thereto.
The relator, Rader, bases his plea for a writ of prohibition upon the fact that previously, on October 14, 1952, another suit covering the same subject matter was brought by Charles J. Burton and Mae Burton, his wife; Raymond Zander and Madeline Zander, his wife; John Beetsma and Minnie M. Beetsma, his wife; James R. McGlinn and Dorothy E. McGlinn, his wife against Rader in the Lake Circuit Court. It should be noted here, however, that Roy Greathouse et al., plaintiffs in the second suit and referred to above, were not named specifically in the first suit brought in 1952.
The first suit brought in 1952 was an action for a permanent injunction against relator, Rader, to prevent defendants therein from interfering with the Brown Levee and ditches connected therewith and to compel them to restore the same to its original condition. That complaint and the supplemental complaint thereto said that the land of those plaintiffs and all other persons and individuals similarly situated within the levee and drainage system would be damaged by overflow by the acts and threatened acts of Rader, defendant in that cause. That action was put at issue, tried and judgment rendered on the 18th day of June, 1953, for the plaintiffs in which a permanent injunction was granted against defendants. An appeal was thereafter taken to the Appellate Court which reversed the judgment of the trial court and directed that a new trial be granted. Rader v. Burton, 1956, 126 Ind.App. 313, 130 N.E.2d 58. Upon the remanding of the cause to the trial court, a charge of venue was taken to the Jasper Circuit Court. The plaintiff thereupon filed an amended complaint with substantially the same allegation therein so far as we are concerned with the question here involved. Thereafter, on May 1, 1957, William Rader filed a cross-complaint against Charles J. Burton and Mae Burton, his wife; Raymond Zander and Madeline Zander, his wife; John H. Beetsma and Minnie Beetsma, his wife; James R. McGlinn and Dorothy E. McGlinn, his wife, asking for a restraining order and an injunction to keep the cross-defendants from molesting or interfering with the culvert and pipes he had placed through the Brown Levee. The court, upon application, on the same day is sued a temporary restraining order without notice as petitioned. Again we call attention to the fact that the plaintiffs Roy Greathouse et al. in the second suit in the Lake Circuit Court were not named in the cross-complaint filed prior thereto in the Jasper Circuit Court by Rader.
The relator, Rader, contends that there is a conflict of jurisdiction between the two courts, and the court which first obtains jurisdiction of the subject matter and the parties has such jurisdiction to the exclusion of any other court of concurrent jurisdiction. State ex rel. Estill, v. Lake Circuit Court, 1953, 232 Ind. 529, 114 N.E.2d 560; State ex rel. Allison v. Brennan, 1951, 229 Ind. 281, 97 N.E.2d 925; State ex rel. Ferger v. Circuit Court, 1949, 227 Ind. 212, 84 N.E.2d 585; State ex rel. Kunkel v. La Porte County Circuit Court, 1936, 209 Ind. 682, 693, 694, 200 N.E. 614, 618.
With this principle we are in complete accord, but before it is applicable, two conditions must exist; (1) the subject matter and the issues triable must be the same; and (2) the parties in each cause of action must be the same or they must be bound thereby by proper representation. 21 C.J.S. Courts § 492, p. 745; State ex rel. Allison v. Brennan, supra; State ex rel. Ferger v. Circuit Court, supra.
Insofar as the first point is involved here, there seems to be no question but that the issues are the same. State ex rel. Kunkel v. La Porte County Circuit Court, supra, 1936; Brown v. Doak Co., 1922, 192 Ind. 113, 135 N.E. 343; Boos v. State, 1911, 175 Ind. 389, 94 N.E. 401; State ex rel. Estill v. Lake Circuit Court, surpa.
Relator, Rader, claims that although Roy Greathouse et al., who brought the second suit, are not named specifically as parties in the first suit, they are, nevertheless, bound because the first suit was brought as a class action on behalf of all landowners in the levee and drainage district 'similarly situated.' With the general proposition that all members of a class are bound by the adjudication in an action properly brought on their behalf although not specifically designated by name as a party, there can be no disagreement. Siegel v. Archer, 1937, 212 Ind. 599, 10 N.E.2d 626; Kimes v. City of Gary, infra; Annotation, 101 A.L.R., 574. However, our difficulty in this case is in determining whether the first action is a class action or not. An examination of the complaint, amended complaint and cross-complaint filed in the first action, reveals that at no place in the title or the body thereof is it stated that the action is brought by the plaintiff or cross-complainant in a representative capacity on behalf of those similarly situated. It is true that in the complaint and amended complaint in the first action a statement is made that the land of 'others similarly situated' will...
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