Wabash Railroad v. Public Service Commission

112 N.E.2d 292, 232 Ind. 277, 1953 Ind. LEXIS 196

• Court: Indiana Supreme Court
• Decided: May 14, 1953
• Docket: 28,972
• Status: Published

Opinions

Gilkison, J.

On October 13,1949, the appellee made an order, in a proper proceeding then lawfully before it, requiring appellant to provide a flagman at the crossing of its tracks and the Richvalley road, a highway in Wabash County, Indiana, running approximately north and south at the point of crossing, or, at the election of appellant, that it install standard automatic flasher lights at the crossing. This proceeding was instituted agreeable with Acts 1915, Ch. 49, pp. 105, 106. §§55-2016 to 55-2019 inclusive, Burns’ 1951 Replacement. On November 1, 1949, appellant filed with the commission a petition for rehearing of the matter, as provided for by Acts 1905, Ch. 53, p. 83; Acts 1907, Ch. 241, p. 454; Acts 1913, Ch. 306, §1, p. 820, §55-112 Burns’ 1951 Replacement, which was denied by the commission on November 17, 1949.

Within twenty days thereafter, on December 6, 1949, appellant filed its complaint for a review of the commission’s decision, in the Tippecanoe Circuit Court, to which appellee filed a demurrer, solely under clause First, §2-1007 Burns’ 1946 Replacement, raising only the question whether the trial court had jurisdiction of the subject-matter of the action. The trial court sustained the demurrer, and appellant failing and refusing to plead over as it had been ruled to do, the trial court rendered judgment in favor of appellee and against appellant for costs. From this judgment the appeal is taken.

The question presented is as to the correctness of the ruling on the demurrer. Since the sufficiency of the averments of the complaint is not questioned¹ it is unnecessary to state these averments or their substance. In this appeal appellant attempts to present a question as to jurisdiction of the particular case rather than of the subject-matter of the action. State ex rel. Kunkel v. LaPorte Circuit Court (1936), 209 Ind. 682, 694, 200 N. E. 614. State ex rel. Ferger v. Circuit Ct. (1949), 227 Ind. 212, 215, 84 N. E. 2d 585. State ex rel. Pub. Serv. Com. v. Marion C. Ct. (1951), 230 Ind. 277, 284, 100 N. E. 2d 888, 103 N. E. 2d 214. State ex rel. Allison v. Brennan, Judge (1951), 229 Ind. 281, 284, 97 N. E. 2d 925. State, ex rel. Cook v. Madison Circuit Court (1923), 193 Ind. 20, 27, 138 N. E. 762.

The question of jurisdiction of the particular case was not raised by the demurrer,² 1 2 and if it does not appear on the face of the complaint, it can be raised only by a plea in abatement. The Eel River Railroad et al. v. State ex rel. Kistler (1896), 143 Ind. 231, 234 et seq., 42 N. E. 617.

Our civil procedure statute provides as follows:

“Where any of the matters enumerated in section 85 [§2-1007] do not appear upon the face of the complaint, the objection (except for the 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: Provided, however, That the objection that the action was brought in the wrong county, if not taken by answer or demurrer, shall be deemed to have been waived.” §2-1011 Burns’ 1946 Replacement.

No objection having been made that the action was brought in the wrong county, either by demurrer or answer, the defect must now be deemed waived agreeable with the statute last quoted. Noerr, Administratrix, v. Schmidt, Trustee, et al. (1898), 151 Ind. 579, 584, 51 N. E. 332. Daniels v. Bruce (1911), 176 Ind. 151, 156, and authorities there cited, 95 N. E. 569. Brumfield, Tr. v. State ex rel. Wallace (1934), 206 Ind. 647, 654, 190 N. E. 863. Globe Accident Insurance Co. v. Reid (1897), 19 Ind. App. 203, 218, 47 N. E. 947.

For the reasons given the-judgment of the trial court is reversed with instructions to overrule the demurrer and further action agreeable with this opinion.

1 . It is only when a demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action is filed that a memorandum is required to be filed therewith. The memorandum shall state “wherein such pleading is insufficient for want of facts.” Cl. 6th, §2-1007 Burns’ 1946 Replacement. The causes for demurrer are provided by statute, and the nature of the demurrer is neither established nor changed by the memorandum that may be filed therewith. Keltner v. Patton (1933), 204 Ind. 550, 553, 185 N. E. 270. Rimco Realty & Investment Corp. v. LaVigne (1943), 114 Ind. App. 211, 215, 50 N. E. 2d 953.

2 . It has been the universal rule in Indiana that “Lack of jurisdiction of subject matter contemplated by the statute [§2-1007 Burns’ 1946 Replacement] as grounds for a demurrer, means that the court does not have jurisdiction of the general subject or of a general class of cases to which the particular case belongs.” State ex rel. Felthoff v. Richards (1932), 203 Ind. 637, 640, 180 N. E. 596. McCoy v. Able, et al. (1892), 131 Ind. 417, 420, 30 N. E. 528. Quinn v. Peoples Trust & Savings Co. (1945), 223 Ind. 317, 324, 60 N. E. 2d 281. Daniels v. Bruce (1911), 176 Ind. 151, 157, 95 N. E. 569.