Townsend, J.
On April 7, 1911, the city of Hammond annexed by ordinance contiguous unplatted territory pursuant to §8896 Burns 1914, Acts 1905 p. 383. There was an appeal to the circuit court pursuant to §8897 Burns 1914, Acts 1905 p. 383. On July 3, 1913, the circuit court rendered the following-judgment: “It is therefore considered, adjudged and decreed by the court, that the territory hereinabove described be, and the same is hereby annexed to said City of Hammond, and by agreement of all parties hereto duly entered in open court, it is now by the court ordered that said annexation shall not become effective until five years from this date, at which time said territory shall become and be a part of the said city of Hammond.
“It is further adjudged and decreed by the court that all of the costs of this proceeding be, and the same are hereby taxed against the said City of Hammond.” (Our italics for convenient reference hereafter.)
On December 3, 1917, proceedings were begun before the board of county commissioners for the incorporation of appellee town of Hessville. On January 9, 1918, the board ordered this incorporation. The territory so incorporated as the town of Hessville is exactly [254]*254coterminous with the unplatted territory annexed by the ordinance of the city of Hammond, and by the foregoing judgment of the circuit court.
By quo warranto relator sought to forfeit the charter of the town of Hessville and prevent the officers of that town from performing their functions and duties.
From.a judgment of the trial court denying this relief relator appeals. The questions arise on the motion for a new trial: (1) The decision is contrary to law. (2) The decision is not sustained by sufficient evidence.
Neither in the original briefs nor upon the oral argument of this cause was any question raised as to the propriety of the remedy by quo warranto; but since then amici curiae have intervened and by permission of court have filed briefs in which they claim that the proper remedy is by injunction. They rely upon Stultz v. State, ex rel. (1879), 65 Ind. 492. An examination of that case will disclose that the court expressly held that the corporate existence of the city of Huntington was not called in question by the information. This court there held that it appeared from the face of that information that the officers of the city of Huntington were exercising authority over territory which relator claimed was illegally annexed. This court reversed that case, with instructions to sustain a demurrer to the information upon the ground that it did not state a cause of - action within the purview and meaning of the clauses of §749, 2 R. S. 1876. (Now §1188 Burns 1914.)
1. If what is said in the Stultz case, supra, as to the propriety of the remedy by quo warranto, is correct (See note to City of Union Town v. State, ex rel. Glass (1906), 145 Ala. 471, 8 Ann. Cas. 320), it has no application to the instant case, for the information grounds itself on-the proposition that the appellee town has no legal existence. Appellee town [255]*255has no place to live except in the territory attempted to be annexed to the city of Hammond. It has no territory but this to exercise authority over. Its officers have no place to function but here. This being true, we hold that quo warranto is a proper remedy. The legal existence of a municipal corporation is properly brought in question by quo warranto. Mullikin v. City of Bloomington (1880), 72 Ind. 161; §1188, cl. 3, Burns 1914, §1131 R. S. 1881.
2. It is also suggested by amici curiae that the prosecuting attorney of the thirty-first judicial district in no way represents the city of Hammond, and therefore should not be permitted as relator to question the legal existence of the town of Hessville, and .thereby determine the effect of the judgment of the circuit court. The prosecuting attorney for the thirty-first judicial district represents all of the people in that district, so fár as pleas of the state are concerned. Section 1189 Bums 1914, §1132 R. S. 1881, expressly confers upon him the power to initiate proceedings in quo warranto. The city of Hammond and the town of Hessville are in his district. The remedy being proper, he is the proper officer to file the information and prosecute the case.
3. It is shown by the information here that the persons seeking to organize the town of Hessville had a preliminary survey (§8975 Burns 1914, Acts 1905 p. 219) of the exact territory attempted to be annexed to the city of Hammond. They invoked the action of the board of commissioners to grant them the right to be a municipal corporation exercising authority over this territory. Now if the city of Hammond had already lawfully annexed this territory, then the action of the city and the circuit court on appeal was exclusive, and the board of commissioners had no jurisdiction to create the town of Hessville. Where two [256]*256tribunals have concurrent and complete jurisdiction of the subject-matter, the one first invoked becomes exclusive. Taylor v. City of Fort Wayne (1874), 47 Ind. 274, 282.
4. The contention between relator and appellees is upon the effect of the words which we have italicized in the judgment of the circuit court. It is the contention of appellees that the attempted postpone- • ment of the operation of this judgment renders the whole proceeding void. Relator presents the dilemma that he is not interested in the matter of whether the judgment is valid or void; that, in any event, the territory was annexed to the city of Hammond by the ordinance, and even if the judgment is void, there is a proceeding pending and therefore the board of county commissioners had no jurisdiction to grant a charter to the town of Hessville.
Counsel for relator and for appellee have been diligent in presenting authorities, but no exact precedent has been called to our attention by them; nor have we been able to discover any by search.
It may be conceded that the court had no power to suspend the effect of this judgment. The court was authorized by §8897 Burns 1914, swpra, to annex or deny annexation. The question then is, What effect did the attempted postponement of the judgment have upon its validity? When that which refers to the postponing of annexation is stricken out, there is a proper and complete judgment annexing the territory to the city of Hammond. Because the court put more into this judgment than is authorized by law, does that destroy the valid part of the judgment? We think not. For the authorized part is separable from that which is unauthorized. The remonstrance filed in the circuit court against the ordinance of annexation suspended the operation of that ordinance until judgment was rendered. [257]*257§8897 Burns 1914, supra. A denial of annexation by the judgment would have precluded the city from passing another ordinance within two years. §8897 Burns 1914, supra.
We hold that the part of the judgment italicized was unauthorized, and we hold that it is separable from the authorized part of the judgment. In other words, by striking out the italicized words in the judgment, there is a valid judgment of annexation. The italicized words have no effect upon the judgment.
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Townsend, J.
On April 7, 1911, the city of Hammond annexed by ordinance contiguous unplatted territory pursuant to §8896 Burns 1914, Acts 1905 p. 383. There was an appeal to the circuit court pursuant to §8897 Burns 1914, Acts 1905 p. 383. On July 3, 1913, the circuit court rendered the following-judgment: “It is therefore considered, adjudged and decreed by the court, that the territory hereinabove described be, and the same is hereby annexed to said City of Hammond, and by agreement of all parties hereto duly entered in open court, it is now by the court ordered that said annexation shall not become effective until five years from this date, at which time said territory shall become and be a part of the said city of Hammond.
“It is further adjudged and decreed by the court that all of the costs of this proceeding be, and the same are hereby taxed against the said City of Hammond.” (Our italics for convenient reference hereafter.)
On December 3, 1917, proceedings were begun before the board of county commissioners for the incorporation of appellee town of Hessville. On January 9, 1918, the board ordered this incorporation. The territory so incorporated as the town of Hessville is exactly [254]*254coterminous with the unplatted territory annexed by the ordinance of the city of Hammond, and by the foregoing judgment of the circuit court.
By quo warranto relator sought to forfeit the charter of the town of Hessville and prevent the officers of that town from performing their functions and duties.
From.a judgment of the trial court denying this relief relator appeals. The questions arise on the motion for a new trial: (1) The decision is contrary to law. (2) The decision is not sustained by sufficient evidence.
Neither in the original briefs nor upon the oral argument of this cause was any question raised as to the propriety of the remedy by quo warranto; but since then amici curiae have intervened and by permission of court have filed briefs in which they claim that the proper remedy is by injunction. They rely upon Stultz v. State, ex rel. (1879), 65 Ind. 492. An examination of that case will disclose that the court expressly held that the corporate existence of the city of Huntington was not called in question by the information. This court there held that it appeared from the face of that information that the officers of the city of Huntington were exercising authority over territory which relator claimed was illegally annexed. This court reversed that case, with instructions to sustain a demurrer to the information upon the ground that it did not state a cause of - action within the purview and meaning of the clauses of §749, 2 R. S. 1876. (Now §1188 Burns 1914.)
1. If what is said in the Stultz case, supra, as to the propriety of the remedy by quo warranto, is correct (See note to City of Union Town v. State, ex rel. Glass (1906), 145 Ala. 471, 8 Ann. Cas. 320), it has no application to the instant case, for the information grounds itself on-the proposition that the appellee town has no legal existence. Appellee town [255]*255has no place to live except in the territory attempted to be annexed to the city of Hammond. It has no territory but this to exercise authority over. Its officers have no place to function but here. This being true, we hold that quo warranto is a proper remedy. The legal existence of a municipal corporation is properly brought in question by quo warranto. Mullikin v. City of Bloomington (1880), 72 Ind. 161; §1188, cl. 3, Burns 1914, §1131 R. S. 1881.
2. It is also suggested by amici curiae that the prosecuting attorney of the thirty-first judicial district in no way represents the city of Hammond, and therefore should not be permitted as relator to question the legal existence of the town of Hessville, and .thereby determine the effect of the judgment of the circuit court. The prosecuting attorney for the thirty-first judicial district represents all of the people in that district, so fár as pleas of the state are concerned. Section 1189 Bums 1914, §1132 R. S. 1881, expressly confers upon him the power to initiate proceedings in quo warranto. The city of Hammond and the town of Hessville are in his district. The remedy being proper, he is the proper officer to file the information and prosecute the case.
3. It is shown by the information here that the persons seeking to organize the town of Hessville had a preliminary survey (§8975 Burns 1914, Acts 1905 p. 219) of the exact territory attempted to be annexed to the city of Hammond. They invoked the action of the board of commissioners to grant them the right to be a municipal corporation exercising authority over this territory. Now if the city of Hammond had already lawfully annexed this territory, then the action of the city and the circuit court on appeal was exclusive, and the board of commissioners had no jurisdiction to create the town of Hessville. Where two [256]*256tribunals have concurrent and complete jurisdiction of the subject-matter, the one first invoked becomes exclusive. Taylor v. City of Fort Wayne (1874), 47 Ind. 274, 282.
4. The contention between relator and appellees is upon the effect of the words which we have italicized in the judgment of the circuit court. It is the contention of appellees that the attempted postpone- • ment of the operation of this judgment renders the whole proceeding void. Relator presents the dilemma that he is not interested in the matter of whether the judgment is valid or void; that, in any event, the territory was annexed to the city of Hammond by the ordinance, and even if the judgment is void, there is a proceeding pending and therefore the board of county commissioners had no jurisdiction to grant a charter to the town of Hessville.
Counsel for relator and for appellee have been diligent in presenting authorities, but no exact precedent has been called to our attention by them; nor have we been able to discover any by search.
It may be conceded that the court had no power to suspend the effect of this judgment. The court was authorized by §8897 Burns 1914, swpra, to annex or deny annexation. The question then is, What effect did the attempted postponement of the judgment have upon its validity? When that which refers to the postponing of annexation is stricken out, there is a proper and complete judgment annexing the territory to the city of Hammond. Because the court put more into this judgment than is authorized by law, does that destroy the valid part of the judgment? We think not. For the authorized part is separable from that which is unauthorized. The remonstrance filed in the circuit court against the ordinance of annexation suspended the operation of that ordinance until judgment was rendered. [257]*257§8897 Burns 1914, supra. A denial of annexation by the judgment would have precluded the city from passing another ordinance within two years. §8897 Burns 1914, supra.
We hold that the part of the judgment italicized was unauthorized, and we hold that it is separable from the authorized part of the judgment. In other words, by striking out the italicized words in the judgment, there is a valid judgment of annexation. The italicized words have no effect upon the judgment. What effect they may have upon the parties to the agreement, we need not here determine.
5. For some purposes the doctrine of estoppel is applicable to municipal corporations. Not because of the mere nonaction of its officers to assert a right, but because of some affirmative action influencing another, which renders it inequitable for the corporate body to assert a different set of facts. See Logan County v. City of Lincoln (1876), 81 Ill. 156, 159; Board, etc. v. City of Denver (1902), 30 Colo. 13, 69 Pac. 586.
The judgment is reversed, with instructions to the trial court to sustain relator’s motion for a new trial.