Vogel v. Brown Tp.

• Citation: 112 Ind. 299,14 N.E. 77
• Parties: Vogel v. Brown Tp.
• Decision Date: 17 November 1887
• Court: Supreme Court of Indiana

112 Ind. 299

14 N.E. 77

Vogel

v.Brown Tp.

Supreme Court of Indiana.

November 17, 1887.

Appeal from circuit court, Martin county; David J. Hefron, Judge.

Brooks & Reeve and Mosier & Houghton, for appellant. Gardner & Taylor and J. T. Rogers, for appellee.

Elliott, J.

The object of this suit is to set aside a judgment obtained by the appellant in April, 1884. One point upon which the appellee's counsel rest their case is that the judgment is void because it is based on a complaint against Brown civil township. There is no substantial merit in this contention. The addition of the word “civil,” while it created an inaccuracy in the name of the political corporation, did not render the judgment void. We have very many decisions defining and declaring the difference between civil and school townships, and it is by no means uncommon to speak of an ordinary township as a civil township. The word “civil” correctly describes the township, and no one could have been misled or prejudiced by its use. The general rule is that if the writ is served on the party by a wrong name, and he fails to appear and plead the misnomer, he is concluded, and in all future proceedings may be connected with the judgment by proper averments. Bank v. Jaggers, 31 Md. 38;Smith v. Patten, 6 Taunt. 115. This rule applies to corporations as well as to natural persons. Insurance Co. v. French, 18 How. 404;Railroad Co. v. Burress, 82 Ind. 83.

The failure to call the appellee before entering a default was a mere irregularity, and is not, even on appeal, considered as a material error. Doherty v. Chase, 64 Ind. 73.

The summons issued in the original action was against “Valentine Strange, Trustee of Brown Civil Township, Martin County, Indiana.” This cannot be regarded as a writ against the township. Strange, although the trustee, was not the township. At most he was its special agent, with naked statutory powers. Union School Tp. v. Bank, 102 Ind. 464, 2 N. E. Rep. 194; Bloomington, etc., v. National, etc., Co., 107 Ind. 43, 7 N. E. Rep. 760. Unless it is otherwise expressly declared by law, it is the people of a locality who constitute the political corporation, and not the officers chosen by them. City v. Gardner, 97 Ind. 1; Grant, Corp. 357; Lowber v. Mayor, 5 Abb. Pr. 325;Clarke v. City, 24 Barb. 446. It is apparent, therefore, that the utmost that can be granted the appellant is that he asked and obtained a writ against the agent, and not against the principal. This...