Indianapolis & Cincinnati Railroad v. Renner

17 Ind. 135, 1861 Ind. LEXIS 323

• Court: Indiana Supreme Court
• Decided: November 29, 1861
• Status: Published

Opinion

Worden, J.

Suit by Renner, under the statute, against the company, for killing a cow upon the road, where it was not fenced. Suit was brought before a justice of the peace, and taken by appeal to the Circuit Court, where there was a verdict and judgment for the plaintiff; a new trial being applied for, and denied.

J. S. Seobey, for the appellant. E. Dumont and J. T. Drown, for the appellee.

Hie point made is, that the verdict is not sustained by the evidence, and particularly, that it did not appear that the cow was killed in Dearborn county. We have looked into the evidence, and find that this fact was not proven, nor was there any evidence from which it might, legitimately, have been inferred. But the appellee insists that as this was a question of jurisdiction, the fact that the cow was not killed in Dearborn county, if such were the fact, should have been pleaded in abatement; otherwise, it was waived. Hie law on the subject requires the suit to be brought in the county where the injury was done. Acts 1859, p. 105.

Under this statute, unless the injury was done in Dear-born county, the Courts thereof had no jurisdiction of the subject matter. Jurisdiction over the person of the defendant, may be conferred by pleading to the merits without raising the question. Not so, however, in respect to jurisdiction over the subject matter. No consent of parties can confer such jurisdiction. Hie complaint correctly alleged that the injury was done in Dearborn county, and the statutory denial put in before the justice, put in issue, not only the killing, but that it was done in that eounty. The burden of proof, on this point, lay on the plaintiff. ■

Per Curiam. — The judgment is reversed, with costs. Cause remanded, &c.