Loeb v. Mathis

37 Ind. 306

• Court: Indiana Supreme Court
• Decided: November 15, 1871
• Status: Published

Opinions

Gregory, J.

Suit by the appellee against the appellants for trespass to real property, situate in Warren county, and so averred in the complaint, commenced .in the Fountain circuit court, and transferred to the court below by change •of venue. Trial by jury,, verdict for the plaintiff motion in .arrest of judgment overruled, and judgment.

The question presented by the motion in arrest, the overruling of which is assigned for error, is this: had the court "below jurisdiction of the subject of the action?

Thé complaint is in one paragraph. It is claimed by the counsel of the appellee that it contains two causes of action, ■ one for the trespass to the land, and the other for an injury to personal property. It is clear to our minds that the injury averred to the personal property is only a matter of ■aggravation of the damages.

Barnum v. Vandusen, 16 Conn. 200, is very much in point. "That was an action of trespass for breaking and entering the plaintiff’s close. An injury very similar to the one in the case in judgment was averred in the complaint.

The learned judge, speaking for the court, says: “But here, the defendant’s sheep, while trespassing upon the plaintiff’s land, communicate to the plaintiff’s sheep a disease of which numbers of them die, and no sufficient justification being shown for the trespass, the question is, whether this communication of disease is such an injury as aggravates the damage occasioned by the trespass, and authorizes the plaintiff to recover damages for the loss of his sheep,, as well as for the breach of his close. We think, it is such an injury. Indeed, the rule is believed to be universal, that any consequential damage, resulting from the trespass, and not too remote, may be declared on as matter of aggravation, and if proved, damages maybe recovered for it.”

It was also held in that case, that it could be shown in evidence to aggravate the damages that the defendant knew that his sheep were diseased.

The code provides, that “ actions for the following causes must be commenced in the county in which the subject of the action, or some part thereof, is situated: first, for the recovery of real properly, or of an estate ■ or interest therein, or for the determination in any form of such right or interest, and for injuries to real property.” Sec. 28, 2 G & IT, 56.

Sections 50 and 54 of the code are as follows:

“ Section $0. The defendant may demur to the complaint when it appears upon the face thereof, either, first, that the court has no jurisdiction of the person of the defendant, or the subject of the action; or, second, that the plaintiff has not legal capacity to sue; - or, third, that there is another action pending between the same parties for the same cause; or,- fourth, that there is a defect of parties, plaintiff or defendant; or, fifth, that the complaint does not state facts sufficient to constitute a cause of action; or, sixth, that several causes of action have been improperly united; and for no other cause shall a demurrer be sustained; and, unless the demurrer shall distinctly specify and number the grounds of objection to the complaint, it shall be overruled.”

“Section 54. When any-of the matters enumerated in section fifty do not appear on the face of the complaint, the objection (except for misjoinder of causes) may be taken by answer. If no such objection is taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court over the subject of the action, and except the objection that the complaint does not state facts sufficient to constitute a cause of actionThe words in italics were added by amendment in 1855. See Acts of 1855, p. 60.

Does section 28, supra, relate only to the venue, or is it jurisdictional?

If it relates only to the venue, it is clear that a demurrer would not lie where the objection appears upon the face of the complaint, and if in such case a demurrer is proper, then it is equally clear that the objection is not waived by a failure to demur or answer. The same words, “the subject of the action,” are used in both sections 50 and 54.

It cannot, with any fairness, be said that these words mean one thing in section 50, and another thing in section 54.

It is admitted that there is a difference between a wrong venue and the want of jurisdiction of the subject of the action. The Warren Circuit Court is a different tribunal from the Fountain Circuit Court. It is true that they are both circuit courts, but each exercises an independent jurisdiction. It is certainly in the power of the legislature to confer jurisdiction that shall be exclusive in each. If language can do this, it seems plain that section 28 of the code has done it.

This question has been repeatedly adjudged in this court.

In Brownfield v. Weicht, 9 Ind. 394, Davison, J., speaking for the court, says: “The appellants seek to reverse the judgment upon four grounds; first, it does not appear by the complaint that the land in controversy is situate in Steuben county.

"The code says actions for the recovery of real estate, or any interest therein, mu.st be commenced in the county in which the subject of the action, or some part thereof, is situated. 2 R. S. p. 33. Still the pleading in question is unobjectionable, and would have been so held on demurrer, because the circuit court being of general and unlimited jurisdiction, its authority to proceed in the trial of a cause need notaffirmatively appear in the complaint. Van Santvoord PI. 663. The objection for want of jurisdiction, if it exists, may be raised by the answer, or at any subsequent stage of the proceedings. But, in this instance, it did not exist. The record before us sufficiently shows the subject of the actipn to be located in Steuben county.” In Prichard v. Campbell, 5 Ind. 494, the same learned judge, in speaking for the court, says: “Another objection is raised to these proceedings. No evidence was adduced on the trial tending to prove that the close described in the complaint was within the county of Madison. In that respect the proof was defective. Trespass for breaking and entering a close is a local action. It can only be brought in the county in which the premises are situated. Their locality ought, therefore, to be .proved as they are described. 2 Phil. Ev. 136; Ham v. Rogers, 6 Blackf. 559.

“In Roach v. Damron, 2 Humph. 425, it was decided that Vhe land upon which the trespass is committed' must be proved to lay in the county in which the action is brought. This defect in proof will not be cured by verdict.’”

In the case in 2 Humph., referred to by the court, it is expressly said, in speaking of the action (it being an action of trespass, for breaking and entering the plaintiff’s close), that, “ in its nature, it is a local action, the court of the county in which the land is situated alone-haying jurisdiction.”

In Parker v. McAllister, 14 Ind. 12, it was held that the objection could be taken by demurrer on the ground that the court had no jurisdiction of the subject of the action.

In The New Albany and Salem Railroad Co. Huff, 19 Ind. 444, Davison, J. speaking for the court, says: “In support of the motion in arrest, it is argued that the real estate taken in execution, the title to which is directly involved in this suit, being in Jasper county, the Tippecanoe Circuit Court had no jurisdiction. The code says: ‘Actions for the following causes must be commenced in the county in which the subject of the action, or some part thereof' is situated: i. For the recovery of real property, or of an estate or interest therein, or for the determination in any form of any such right or interest. 2. For the partition of real estate. 3. For the foreclosure of a mortgage of real property.’ 2 R. S. p. 33. Does, this enactment apply to- the-case at bar? It is. true, as contended, the trust-deed covers, lands in Tippecanoe county, belonging to the company ;. but the title to these lands, was. not at all in issue, because, as a reason for the levy in Jasper county, it is alleged in the complaint, that the lands in Tippecanoe were so largely incumbered that an execution, issued on plaintiff’s judgment, and. levied upon them, would have been unavailing. Indeed, the object of the suit was to annul the trust-deed,as to the property levied on, and to render the levy of the plaintiff's execution, on that property, effective. As has been seen, the levy was made in Jasper county, and the question arises, had the court, before which this cause was determined, power to decide upon the title, and direct the sale of lands in that county? This inquiry seems, to be fully answered by the-statutory enactment to* which we have referred: ‘Actions, for the determination, in any form, ©f any right or interest in real property, must be commenced, in the county in which the subject of the action, or some part thereof^ is situated.’’ The title to the lands levied on by the-plaintiff’s execution,, no part of which are situate in Tippecanoe county, was, plainly, the subject of the present action; hence, the circuit court of that county had no power to adjudicate upon the case made by the record.”

In Vail v. Jones, 31 Ind. 467, there had been a verdict upon an issue formed, and it had been, agreed that the jury should find on that issue. The judgment had* been, arrested in the court below. The decision of the majority was put on the ground alone that the matter had been set up in a counter claim. The rulings in Parker v. McAllister, and The New Albany and Salem R. R. Co. v. Huff, supra, were recognized as good authority.

The code was passed in 1852. There has been a long line of unbroken decisions holding that this twenty-eighth section was one Of jurisdiction, and not of venue. In opposition stands the reasoning in The Indianapolis and Madison Railroad Co. v. Solomon, 23 Ind. 534. The decision in that case is clearly right, but is put on the wrong ground. Under the facts, the case is within the ruling in Brownfield v. Weicht, supra. The court being one of general jurisdiction, it was not necessary to aver in the complaint that the animals were killed in the county where the suit was commenced, and it •turned out in the evidence that theywere, in fact, killed within the jurisdiction of the court. Moreover; under the act of March 4th, 1863 (Acts of 1863, p. 187), it can well be held, that the place where the animals are killed is matter of venue alone, for the reason that the provision was made for the benefit of the owners of animals thus killed, and could, of course, be waived by the persons for whose sole benefit the enactment was made. This is also true in reference to the divorce law, under which Lewis v. Lewis, 9 Ind. 105, was decided.

These two classes of cases "are transitory in their nature. But as a rule of construction, it is thought that the position, that the fifty-fourth section of the code was only intended to except such want of jurisdiction over the subject-matter of the action as would make the proceedings coram non judice and void, is not tenable, for the plain reason that by its very terms it does embrace such want of jurisdiction as may be raised by an answer. When there is a total want of jurisdiction over the subject-matter of the action, it will appear on the face of the complaint. For instance, by no possible averments could it be made to appear in a complaint for the recovery of real property, that the common pleas court had jurisdiction of the subject of the action.

But whatever opinion may be entertained of the twenty-eighth section of the code, independent of the adjudged cases, it cannot now as a rule' of construction be considered an open question. A long line of uniform decisions con-, struing a statute, in the face of the fact that the legislature for a long series of years has acquiesced in such construction, cannot, with any judicial propriety, be disregarded or lightly treated.

But it is suggested that this is a technical error, and that it is cured by sections ioi and 580 of the code. The former provides, that “the court must in every stage of the action disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party, and no judgment can be reversed or affected by reason of such error or defect.” If, then, this error is cured by this section, the provisions of the twenty-eighth section of the code are wholly without effect for any purpose; for it would be the duty of the court to disregard such an error at every stage of the action, as much at its commencement as at its termination. It will be noticed that all the cases enumerated in section twenty-eight of the code are such as may involve an investigation into the title of real property. Under our registry laws, deeds and mortgages are required to be recorded in the county in which the lands embraced therein are situate. It would tend greatly to the security of the substantial rights of defendants, to have the action in that class of cases commenced in the.county “in which the subject of the action is situate,” where the title could with facility be examined, and where the jury could with convenience examine the premises. It is true, there is ~nother class of cases in which this right is equally important, and the distinction made at the common law between actions for the breach of covenant in a deed of conveyance of land, and actions for trespass guare clausum fregit, is that which is regarded by Chief Justice Marshall in Livingston v. Jefferson, 1 Brock. 203, as technical. But the substantial rights of defendants in both these classes of cases are recognized by that distinguished jurist.in that case. It may be bad legislation to secure these fights in the one, and deny them in -the other class of cases, but this does not change the law. The distinction referred to, contained in a dictum of Lord Mansfield, between actions in rem and those sounding in damages, was expressly overruled in England, as shown by Chief Justice Marshall in Livingston v. Jefferson, supra. The case referred to, of Doulson v. Matthews, 4 Term R. 503, was decided in 1792, and was an action of trespass for entering the plaintiff’s dwelling-house in Canada and expelling him. The case in Cowper, containing the dictum of Lord Mansfield, was ■cited, but Kenyon, C. J., said that the contrary had been held. Buller, J., said: “It is now too late for us to inquire whether it were wise or politic to make a distinction between transitory and local' actions; it is sufficient for the courts that the law has settled the distinction, and that an action quare clausum fregit is local. We may try actions here which are in their nature transitory, though arising out of a transaction abroad, but not such as are in their nature local.” The distinction at the common law is between local and transitory actions. That case is cited with approbation in Ham v. Rogers, 6 Blackf. 559, in which it was held, that the action of trespass quare clausum fregit is local, and can be brought only in the county in which the trespass was committed, and that, too, in a case in which the ruling was a denial of justice. That caserns in harmony with Sherry v. Winton, 1 Ind. 96, in which Blackford, J., in speaking for the court, says: “A circuit .court is a county court only, whose jurisdiction is limited, generally, by the bounds of the county. It can issue no process, whether mesne or final, to any. other county, unless by some special statutory provision.”

It was suggested in argument that the affidavit for a change of venue shows that the defendants were not deprived of any substantial rights in not bringing the action in Warren county. It does not follow because there were local prejudices against the defendants in Warren county,'that they lost no rights by the suit being commenced in Fountain county. It seems that at. least they gained nothing, as the same prejudices existed in the latter as in the former county. But it does not follow that a change of venue from the Warren Circuit Court would have resulted in the selection of the forum in which the case was in fact tried; it might have resulted in sending it to some county in which the jury would not (as it is claimed they did in this case) wholly disregard the evidence.

The only part of the five hundred and eightieth section of the code that can have any bearing on this question is this: “Nor shall any judgment be stayed or reversed, in whole or in part, where it shall appear to the court that the merits of the cause have been fairly tried and determined in the court below.” If the court below had no jurisdiction, then there was no trial, and we cannot look to the record to see whether the merits of the cause were fairly tried.

The statute of 16 and 17 Charles II., c. 8, is not in force in this State. The statute of 1843 referred to in Dumont v. Lockwood, 7 Blackf. 576, is this: “For want of a right venue, if the cause was tried by a jury of the right county.” It certainly could with no plausibility be contended that this would cure the error of a trial in the wrong county. The venue may be stated wrong, as was done in that case, but -this would not prevent the trial in the right county. That was a transitory action commenced in the right county with the statement of a wrong venue. The cases referred to in Dumont v. Lockwood are Craft v. Boite, 1 Saund. 241, and The Mayor of London v. Cole, 7 Term R. 579. The former was for slander, and the latter for breach of covenant in a deed for the conveyance of land, held by Lord Kenyon to be transitory, and not local.

If our construction of section fifty-four of the code is right, it follows that this objection was not waived by failing to demur or answer. If, however, we are wrong, then the objection cannot be raised either by demurrer or answer; for if it is not a want of jurisdiction of the subject of the action, within the meaning of the code,'then it is nothing.

It is claimed that'in Newton v. Bronson, 13 N. Y. 587, it was held, that the 123d section of the code of procedure of that state, which is very nearly like the 28th section of our code, only relates to “the place of trial in civil action,” and is not jurisdictional. But this is a mistaken view of that case. That was a suit for the specific performance of a contract for the purchase of land lying in the state of Illinois, but the parties were residents of New York. The point ruled was, that in such a case the 123d section of their code did not take from the Court of Chancery its jurisdiction.

'Denio, C. J., in speaking of the 123 d section of their code, said: “The latter branch of the statute is vague and indefinite, but the language is comprehensive, and it may perhaps embrace suits for a specific performance of contracts for the sale of lands, where they are situated in this State. It has been so held in the superior court of the city of New York, and I am inclined to assent to the views of that court. Ring v. McCoun, 3 Sandf. 524.” The case referred to was heard before Oakley, C. J., and Sandeord and Paine, JJ., in 1851, three years after the adoption of the New York code. It was an action to enforce an implied trust in lands. The question -arose on a demurrer to the complaint, on the ground that the court had no jurisdiction of the subject of the action. The suit was brought in the city of New York; the lands were situated in the county of Queens.

It was held, that the court in which the action was brought had no jurisdiction. Sandeord, J., in speaking for the court, said: “To express our idea in a different form, when the subject of the action, not of a transitory nature, is situated in the county of Queens, that fact must govern as to our jurisdiction; although it may be true that the acts which furnish the grounds of the suit were all done in the city of New York, and in that sense the cause of action arose there.”

• It is suggested that The N. A. & S. R. R. Co. v. Huff is in its nature in rem, operating on the title to real property, and therefore' not in point in the case in judgment. It is expressly held to be embraced in the provisions of the 28th section of the code. If the provision in relation to that class of cases is jurisdictional, then that in relation to actions “for injuries to real property” is also jurisdictional. But that was not an action in rem. It was a suit in the nature of a suit in equity by a judgment creditor to set aside a fraudulent deed of conveyance made by the execution defendant, so that the land could be made subject to execution on the plaintiff’s judgment. In such a case, the decree is not in rem, but in personam. See Gardner v. Ogden, 22 N. Y. 327.

The court below erred in overruling the motion in arrest 1 of judgment.

There are other questions argued by counsel; but as the court below had no jurisdiction of the subject of the action, they do not arise and have not been considered.

Judgment reversed with costs; cause remanded, with directions to sustain the motion in arrest of the judgment.