Hamrick v. Danville & North Salem Gravel Road Co.

32 Ind. 347

• Court: Indiana Supreme Court
• Decided: November 15, 1869
• Status: Published

Opinion

Frazer, C. J.

This cause was commenced in the Court of Common Pleas of Hendricks county. Subsequently, and after answer filed, the appellant moved to change the venue from the county, supporting his motion by proper affidavit, and thereupon, by agreement, the venue was changed to the Putnam Common Pleas, and the third day of the succeeding term of that court fixed for the trial. On that day the parties appeared in Putnam, and the appellee filed a demurrer to the answer. But it had been neglected to transmit the record and papers until within ten days of the first day of the term in Putnam, and upon that ground the court, thereupon,' on its own motion, struck the cause from its docket and directed its action to be certified, together with the papers, &c., to the Hendricks Common Pleas, at the costs of the appellant, to all which he excepted. This order being executed, the Hendricks Common Pleas afterwards took jurisdiction of the cause, over the appellant’s objection, and, he declining further to appear, proceeded to final judgment therein.

C. C. Nave, for appellant. L. M. Campbell, for appellee.

The subject-matter of the suit was within the jurisdiction of the Common Pleas of Putnam, and the full appearance of the parties there gave that court jurisdiction of them. Its jurisdiction of the cause was thereupon complete. Street v. Chapman, 29 Ind. 142; Cox v. Pruitt, 25 Ind. 90 ; Smith v. Jeffries, id. 376.

It is not in the discretion of our courts whether or not they will try causes properly before them. They must proceed. They cannot, of their own motion, avoid it. Parties having waived such objections as they may waive, judicial tribunals cannot, ordinarily, annul or disregard such waiver.

Judgment and all proceedings back to and including the action of the coui’t of common pleas in striking the cause from its docket reversed, with costs. Cause remanded, with directions to the Court of Common Pleas of Hendricks county to send a transcript of its proceedings, with the papers of the cause, to the Putnam court, and to the latter court to proceed with the cause.