The Eel River Railroad Co. v. State ex rel. Kistler
Decision Date | 09 January 1896 |
Docket Number | 17,340 |
Parties | The Eel River Railroad Company et al. v. State, ex rel. Kistler |
Court | Indiana Supreme Court |
From the Cass Circuit Court.
Judgment reversed.
H Crawford and Stuart Bros. & Hammond, for appellants.
Winfield & Taylor and W. A. Ketcham, Attorney-General, for appellee.
OPINION
This is a proceeding by information in the nature of quo warranto, filed by the prosecuting attorney of the Cass Circuit Court against appellants, seeking to forfeit the corporate existence of the Eel River Railroad Company for the alleged reason that it has leased its railroad and abandoned its corporate property and franchises to the Wabash Railroad Company, its co-appellant. Appellants are corporations organized under the laws of this State. The venue of said cause was changed to the court below, where final judgment was rendered against appellants.
It is earnestly insisted by appellants that "the Cass Circuit Court was not vested with any jurisdiction over the Eel River Company to entertain the information in this case." Counsel for appellants in support of this proposition say:
It is provided by section 1132, R. S. 1881 (section 1146, R. S. 1894), that "the information may be filed by the prosecuting attorney in the circuit court of the proper county," and by section 1135, R. S. 1881 (section 1149, R. S. 1894), that,
It was held by this court in Robertson v. State, ex rel., 109 Ind. 79, 85-87, 10 N.E. 582, that all actions must be brought in the county where the defendant resides, except such as the statute expressly provides shall be brought elsewhere; and that a proceeding such as this is a civil action and governed by the provisions of section 312, R. S. 1881 (section 314, R. S. 1894), which reads thus: "that all other actions must be commenced in the county where the defendants, or one of them, has his usual place of residence;" and that the "proper county," mentioned in section 1132 (1146), supra, is the county of the defendants' usual residence. As there is no statutory provision authorizing actions such as this to be instituted elsewhere than in the county where the defendants reside, it follows that jurisdiction of the Eel River Company, unless waived, could only have been acquired by proper service of summons in an action brought in the county of its residence, or in the county of the residence of the Wabash Railroad Company, its co-appellants.
The "proceeding, however, was not coram non judice, and the process a nullity," for the reason that the information did not show that the principal office of the Eel River Company was maintained in Cass county, as claimed by appellants.
It is provided by section 339, R. S. 1881 (section 342, R. S. 1894),
And by section 343, R. S. 1881 (section 346, R. S. 1894), it is enacted:
It is clear, we think, that the subject-matter of this action is within the ordinary jurisdiction of the circuit court, and that if the same was brought in the wrong county, the objection of jurisdiction over the person of the Eel River Company, if properly served with process, would be waived, if not taken by answer or demurrer, as provided in the proviso to section 343 (346), supra. The fact that the place where the action must be brought is governed by section 312 (314), supra, which relates only to venue, is conclusive proof that it is a question of jurisdiction of the person, and not of the subject of the action.
Even if the circuit court of the county in which the Eel River Company "resided," were the only court which could take jurisdiction of the subject of the action against it, such fact need not be alleged in the information.
It has been uniformly held by this court that the circuit court being a court of general jurisdiction, its authority to proceed with a trial of a cause, need not affirmatively appear in the complaint. Chapell v. Shuee, 117 Ind. 481, 20 N.E. 417, and cases cited.
The rule was thus stated by this court in Bass Foundry & Machine Works v. Board, etc., 115 Ind. 234, 17 N.E. 593:
It follows from what we have said that if this action was not commenced in the proper county, as that fact did not appear upon the face of the complaint, such question could only be raised by plea in abatement, and if not so raised would be waived; and that, therefore, the process was not a nullity.
It is also urged by appellants that summons was not served on the Eel River Company in such manner or at such place as to give the court below jurisdiction over the person of that company.
The only jurisdiction obtained over the Eel River Company was by virtue of two summonses directed to the sheriff of Cass county, requiring said company to appear and plead on...
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