Town of Knox v. Golding
| Decision Date | 20 May 1910 |
| Docket Number | No. 6,772.,6,772. |
| Citation | 91 N.E. 857,46 Ind.App. 634 |
| Parties | TOWN OF KNOX v. GOLDING et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Marshall County; Harry Bernetha, Judge.
Action by Cora Golding and another against the Town of Knox. Judgment for plaintiffs, and defendant appeals. Affirmed.
B. D. L. Glazebrook, Beeman & Foster, Harley A. Logan, and Henry R. Robbins, for appellant. Martindale & Stephens, Talbot & Talbot, Henry A. Steis, and W. Reed, for appellees.
The appellees, Cora Golding and her husband, brought this action against the appellant for damages for a personal injury suffered by said Cora, December 30, 1902, caused by a fall upon a defective sidewalk in the town of Knox, Ind. A complaint was filed in the Starke circuit court on September 30, 1904, which is not in the record. October 28, 1904, a summons was issued by the clerk of that court to the sheriff of Starke county, commanding him to summons the town of Knox to appear on November 9, 1904, and answer the complaint of the appellees. This summons was returned by the sheriff indorsed “served as commanded, by reading to and within the hearing of the within-named defendant town of Knox (George Brown, Frank Brown and - Booth),” etc., October 29, 1904. On November 19, 1904, the Starke circuit court, upon motion of the appellees, changed the venue of the cause to the Pulaski circuit court. In the latter court, November 22, 1904, the appellant appeared specially, and moved to quash said summons and to set aside the service thereof, which motion the court sustained. On November 23, 1904, a summons was issued in said cause by the clerk of the Pulaski circuit court to the sheriff of Starke county, Ind., commanding him to summons “the marshal of the town of Knox” to appear in the Pulaski circuit court December 7, 1904, to answer the complaint of the appellees. The return of the sheriff of Starke county upon this summons showed that it came to hand November 25, 1904, and was served November 26, 1904, upon “George Robbins, marshal of the town of Knox.” February 20, 1905, the appellant appeared specially in the Pulaski circuit court and moved to quash the summons and set aside the service thereof. Thereupon, on motion of the appellee, the venue was changed from the judge, and a practicing attorney of said court was appointed, qualified, and took his seat as special judge. September 15, 1905, before said special judge, the appellant entered a special appearance and filed a substituted motion to set aside the service and quash the summons issued by the clerk of the Pulaski circuit court. This motion was overruled, and thereupon the appellant filed a plea in abatement, to which appellee demurred, and the court sustained the demurrer. The appellant filed a motion for a change of venue from the judge, which motion the court overruled, to which ruling appellant expected, and then, as stated in the record, the appellant asked that the notary public before whom the affidavit for such change from the judge was executed, be permitted to attach her seal to the affidavit, which request the court denied, and appellant reserved an exception. Thereupon, as stated in the record, the appellant offered to file the affidavit of Frank L. Brown, one of the members of the town board of the town of Knox, in support of its application for a change of venue from said special judge, which affidavit was sworn to before the attorney of the defendant, and was based upon the ground of bias and prejudice of said judge against the said town of Knox and stating that the regular jury for that term of court had been discharged for the term; that said town of Knox was not willing to have said cause tried before any other than the regular panel, and that said judge was about to order a special venire to be issued for a jury to try said cause. Upon objection by appellees, permission to file the affidavit was refused by the court, and the motion to file it was overruled. On motion of the appellant, the venue of said cause was changed to the court below, wherein the appellees filed an amended complaint in two paragraphs. A demurrer for want of facts was overruled as to the first, and sustained to the second paragraph. The second paragraph of the amended complaint was then amended, to which a demurrer for want of facts was overruled.
The appellant answered in three paragraphs, the first of which was a general denial; second, that the cause of action did not accrue within two years before the bringing of the action; and, third, was an argumentative answer of the two-year limitation. A demurrer to the third paragraph was sustained, and the appellant filed a fourth paragraph denying the jurisdiction of the Pulaski circuit court over the person of the appellant, and asserting that the court below had not obtained such jurisdiction. A demurrer to this answer was sustained. Trial by a jury resulted in a verdict in favor of appellees, assessing the damages of the appellee, Cora Golding, in the sum of $2,750. Pending a motion by the appellant for a new trial, the appellees, upon the court's direction, remitted the sum of $1,200, whereupon appellant's motion for a new trial was overruled. The appellant's assignments of error will be examined in their order.
It is assigned that the court erred in overruling the appellant's substituted motion to quash the summons issued by the clerk of the Pulaski circuit court and to set aside the service thereof. It is contended that, as the defendant was a municipal corporation of Starke county, the action could not be commended in Pulaski county, and therefore summons could not properly be issued by the clerk of the Pulaski circuit court. It is sufficient to say that it appears from the record of this cause in the Pulaski circuit court that it was not brought in the court, but had been duly commenced by the filing of a complaint and the issuing of summons thereon, in the county of which the defendant was a resident corporation; that it was pending in the Pulaski circuit court, upon change of venue, notwithstanding the fact that that court had quashed the original summons and set aside the service thereof. It was, therefore, not improper to issue alias process for the appearance of the defendant in the court in which the case was rightly pending. Niagara Oil Company v. Charles Jackson et al., 91 N. E. 825.
It is further objected that it does not appear that the issuing of the summons by the clerk of the Pulaski circuit court was authorized. If, without any showing upon the subject, it may be assumed on appeal that the clerk had no authority to issue the summons without an order of court, or indorsement upon the complaint, yet it was competent for the plaintiff orally to direct the issuing of the summons, and if it commanded an appearance at a time not authorized by law, it would nevertheless be a good summons for the next term, and there would be no ground for quashing it, but a reason for continuance only. Axtell v. Workman, 17 Ind. App. 152, 46 N. E. 472;Chicago, etc., R. Co. v. Harris, 19 Ind. App. 137, 46 N. E. 1010. In this connection it will be remembered that by the affirmative act of the appellant the venue of this cause was changed to the court below, wherein an amended complaint was filed and the issues formed, which were tried before a jury resulting in the judgment from which this appeal was taken. The jurisdiction of the parties and of the subject-matter was unquestionably in the court rendering the judgment, for, to the amended complaint the appellant, without any objection, entered a full appearance. It therefore became immaterial how many errors, as to the jurisdiction over the parties were made in the case, during its journey from the Starke circuit court to the court below. Yater v. Board, 58 Ind. 299. If upon any theory, it could be said that the action of the Pulaski circuit court in overruling the motion to quash the summons was erroneous, yet in the light of this record it was certainly not harmful, nor did it affect the substantial rights of the appellant, and was not reversible error. Section 407, Burns' Ann. St. 1908; Ades v. Levi, 137 Ind. 506, 37 N. E. 388. No other objections are stated in appellant's brief under the first assignment.
The sustaining of appellees' demurrer to appellant's plea in abatement is challenged on the ground that the demurrer thereto was defective in form. The plea in abatement filed in the Pulaski circuit court was based upon the ground that the defendant was a resident of Starke county, was a municipal corporation, and never had any office, agent, or place of business in Pulaski county, and the suit did not grow out of, or have connection with any business or transaction in any office or agency of the defendant in the latter county. What we have said regarding the first assignment sufficiently answers this one. In addition, we may add that the plea was insufficient, and being insufficient there could be no available error in sustaining a demurrer thereto, though it be defective in form, as claimed. Hildebrand v. McCrum, 101 Ind. 61;Firestone v. Werner, 1 Ind. App. 293, 27 N. E. 623;Foster...
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