Wozniczka v. McKean

• Decision Date: 06 May 1969
• Docket Number: No. 468A56,No. 2,468A56,2
• Citation: 247 N.E.2d 215,144 Ind.App. 471,17 Ind.Dec. 401
• Parties: Thomas WOZNICZKA b/n/f Anthony Wozniczka, Appellants, v. Chester McKEAN, Clarke Fleming, G. House, Anthony Brenkus, Noble Hoke, George Gilman, and the First Church of Christ of Whiting, Appellees
• Court: Indiana Appellate Court

Page 215

247 N.E.2d 215

144 Ind.App. 471

Thomas WOZNICZKA b/n/f Anthony Wozniczka, Appellants, v. Chester McKEAN, Clarke Fleming, G. House, Anthony Brenkus Noble Hoke, George Gilman, and the First Church of Christ of Whiting, Appellees.

No. 468A56.

Appellate Court of Indiana, Division No. 2.

May 6, 1969.

Rehearing Denied June 5, 1969.

Joel C. Levy and Daniel F. Kelly, Tinkham, Beckman, Kelly & Singleton, Hammond, for appellants.

Leser Murphy, Jr., Murphy, McAtee, Murphy & Costanza, East Chicago, for appellees.

SHARP, Judge.

During the pendency of this appeal on the 24th of May, 1968, the Appellees filed a Motion to Dismiss or Affirm, which raised the following questions:

(1) That the 'First Church of Christ of Whiting' was improperly designated as a party to this appeal.

(2) That the First Church of Christ is an unincorporated religious institution and is not registered and as such is an unincorporated religious association and not a legal entity which can sue or be sued in the association name.

(3) Failure of the Appellant's brief to comply with Rule 2--17(h) of the Rules of the Supreme Court.

With regard to the first contention it is clear that the Appellees are contending now that the proper designation should be First Church of Christ rather than First Church of Christ of Whiting. In this regard, it is stated in Rule 2--6 of the rules of the Supreme Court that 'failure properly to name parties will not be treated as jurisdictional.' Furthermore, it would appear that the Appellees have waived any objection to any such misnomer. See Vogel v. Brown Township, 112 Ind. 299, 14 N.E. 77 (1887); Watson v. Burnett, 216 Ind. 216, 23 N.E.2d 420 (1939). It is also clear that the proper procedure for raising the question of misnomer is by a Plea in Abatement in the trial court rather than a Motion to Dismiss or Affirm in this court. See Burns' Ind.Stat.Ann., § 2--1034. It would appear the record is clear that the Appellees entered a general appearance in the trial court and therefore waived any matters, including misnomer, which could have been raised by a special answer in abatement.

In the case of Simons v. Kosciusko Building, Loan & Savings, Association, 180 Ind. 335, 103 N.E. 2 (1913), there was a suggestion that there was a lack of jurisdiction because the word 'Savings' was omitted from the name of the defendant. In 180 Ind. at page 338, 103 N.E. at page 3, our Supreme Court stated:

'If appellant's position be well taken as to the insufficiency of the complaint on account of the omission of the word 'Savings,' his appeal here should be dismissed, for the reason that he has omitted it from the assignment of error, while the judgment is in favor of the Kosciusko Building, Loan & Savings Association. Both positions are too narrow. The omission was doubtless clerical in each instance, but in the circuit court, it being a matter which might have been amended at any time, it will be so treated here, beside the note and mortgage, articles of association, and the constitution and by-laws will control the caption of the complaint.'

This case is brought as a class action and the designation of the class is apparent from the face of the complaint. See Burns' Ind.Stat.Ann., § 2--220.

Also, Burns' Ind.Stat.Ann., § 25--1501, provides that voluntary associations for religious purposes may be statute hold title to land.

It would appear that a class action in this context would be authorized under the authority of Slusser v. Romine, 102 Ind.App. 25, 200 N.E. 731 (1936) and Lynch v. Holy Name Church, 133 Ind.App. 492, 179 N.E.2d 754 (1962).

Without burdening this opinion with extensive citations of authority, we believe that the Appellant's brief is in substantial compliance with Rule 2--17(h) of the Rules of the Supreme Court. See Wylie v. Meyers, 238 Ind. 385, 150 N.E.2d 887 (1958).

For the above reasons the Appellees' Motion to Dismiss or Affirm, which was held in abeyance by order of Joseph O. Carson, Chief Justice, is hereby overruled and we now proceed to a consideration of this appeal on its merits.

The merits of this case are concerned with the propriety of granting summary judgment for the Defendant-Appellees under § 2--2524, Burns' Ind.Stat.Ann., Acts 1965, ch. 90, § 1, which is identical to Rule 56 of the Federal Rules of Civil Procedure. Other recent statements by this court regarding the propriety of summary judgment are in Mayhew et al. v. Deister et al., Ind.App., 244 N.E.2d 448 (1969); Newcomb v. Cassidy, Ind.App., 245 N.E. 846 (1969); Houston v. First Federal Savings & Loan Association of Gary, Ind.App., 246 N.E.2d 199 (1969).

This instant case was initially filed in the trial court on the 30th of December, 1966. The essential allegations of the plaintiff's amended complaint are as follows:

'1. That the plaintiff was borne June 1, 1947, and is an infant under twenty-one (21) years of age and brings this action by and through his natural father and next friend, ANTHONY WOZNICZKA.

'2. That the FIRST CHURCH OF CHRIST OF WHITING is an unincorporated religious institution and maintains a church composed of members of that faith in Whiting, Indiana, the defendant, CHESTER McKEAN, is Treasurer and the defendant, CLARKE FLEMING, is Financial Secretary; and the defendants, CLARKE FLEMING, ANTHONY BRENKUS and NOBLE HOKE, are present members of the Board of Trustees of the church; and GEORGE GILMAN was a member of the Board of Trustees of the church on May 19, 1953.

'3. That on or about March 19, 1953, the FIRST CHURCH OF CHRIST OF WHITING, INDIANA was designated as the owner of the following described property in the City of Whiting, Lake County, Indiana, to-wit:

'All of Lots 11, 12, 13 and the North half of Lot 13, Block 7, of Central Park Addition to Whiting, Indiana, and more generally described and known as 1827--1829 Central Avenue, Whiting, Indiana.

'4. That the membership of said church constitutes a class so numerous as to make it impracticable and impossible to bring them all before this Court; that the named defendants constitute representatives of the class of members as will thoroughly insure the adequate representation of all such members of the church, and the character of the rights sought to be enforced against the class is joint and common to all members of said class; and that each of the members of said class has an interest in the property owned by said church and on which property the plaintiff herein was injured.

'5. That on said property the defendants erected a church on the north side of said property and running from Central Avenue to an alley parallel to Central Avenue at the rear and on the south side of said property erected a parsonage.

'6. That on the date mentioned the defendants maintained in the yard to the rear of the parsonage on the above-described property containers for the burning of trash and other materials and said containers were located to the rear of said property above described and adjacent to said alley.

'7. That at or about 2:00 P.M., on the above, mentioned date and on the above-mentioned property, the plaintiff THOMAS WOZNICZKA, was playing in the yard of the defendants' property with CARLA MC CREARY and MURRAY MC CREARY, who were children of the church's custodians and employees, Carl and Lavada McCreary, and the plaintiff had done so on may previous occasions.

'8. That at said time and place there was a fire burning in the container hereinabove referred to and the plaintiff was injured when his suit caught fire when coming in contact with said fire.

'9. That the injury to the plaintiff was proximately caused by the negligent of the defendants, to-wit:

'(a) Starting a fire on defendants' property and leaving same unattended with full knowledge that young children frequently played on the defendants' property and in the vicinity of said fire.

'(b) Leaving a fire unattended on its property with knowledge that young children were playing in the vicinity of said fire.

'(c) Leaving a fire unattended on its property with knowledge that young children frequently played on the defendants' property in the vicinity of said containers used for burning trash.

'(d) Using a wire container for burning trash which was open, exposed and unsafe for said purpose and from which container flames, ashes and heat were emitted to the general area.

'(e) Placing a wire container for burning trash in an open area with knowledge that young children played in the area where said container was placed and offering no fence, barrier or other protection to said children from the dangers of burning and starting fires in said container.

On October 23, 1967, the Appellees filed their unverified Motion for Summary Judgment which had attached to it parts of a deposition taken at the instance of the Appellees of the Appellant, Thomas Wozniczka. The Motion for Summary Judgment stated:

'Comes now the defendants herein, pursuant to BURNS' Annotated Indiana Statutes, Vol. 2, Part 1, 1965 Pocket Supplements § 2--2524, and move the Court to grant a summary judgment on plaintiff's Amended Complaint on the following ground:

'Plaintiff is a college student, twenty years of age, and alleges in his Amended Complaint that approximately fourteen (14) years ago the defendant church, an unincorporated religious institution, maintained a church and adjacent thereto a parsonage, that plaintiff went upon said premises and while playing with children of the church custodian was burned upon coming in contact with a fire burning in a wire container used for burning trash at the rear of the parsonage property. Plaintiff alleges that the defendant church was negligent in leaving unattended the fire in the burning can with knowledge that children frequently played in the vicinity and that no fence or barrier has been placed around the same. It is obvious from plaintiff's Amended Complaint and his deposition that his status was, at best, a licensee by sufferance. The only theory upon which the defendants...