Page images
PDF
EPUB

the exhibits, the complaint stated a cause of board a coach not standing at the usual place action. for receiving passengers.

Judgment reversed, with instructions to overrule appellee's demurrer to the complaint.

(186 Ind. 118)

CURTIS V. MAUGER. (No. 22879.) * (Supreme Court of Indiana. Dec. 13, 1916.) 1. RECEIVERS 174(1)-SUIT AGAINST RECEIVERS LEAVE OF COURT.

Leave of court appointing a receiver must be obtained as a jurisdictional prerequisite to maintaining an action against him in another jurisdiction.

[Ed. Note. For other cases, see Carriers, Dig. 347(3).] Cent. Dig. 88 1355, 1356, 1363-1366, 1402; Dec.

7. WITNESSES 269(12) TION-SCOPE.

CROSS-EXAMINA

Where plaintiff's witness testified as to decedent's good habits, a question on cross-examination whether the witness knew that a bottle of whisky was found on decedent's body, was improper; there being no evidence decedent was intoxicated, and such question tending to prejudice plaintiff's case.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 949, 950; Dec. Dig. 269(12).] Appeal from Circuit Court, Wilk County; Wm. H. Eichhorn, Judge.

[Ed. Note.-For other cases, see Receivers, Cent. Dig. 88 333-335; Dec. Dig. 174(1).] Action by Minnie E. Mauger, administra2. RECEIVERS 183-SUIT AGAINST RECEIV-trix, against John C. Curtis, receiver. From ERS LEAVE OF COURT-PLEADING. A complaint against a receiver appointed in Judgment for plaintiff, defendant appeals. another jurisdiction is insufficient if it contains no allegation showing that leave to bring the action has been obtained from the court appointing him.

[Ed. Note. For other cases, see Receivers, Cent. Dig. 88 361-366; Dec. Dig. 183.] 3. RECEIVERS 183-LEAVE TO SUE-PLEAD

ING.

Leave to sue need not be alleged in suit ngainst a receiver in the court appointing him. [Ed. Note.-For other cases, see Receivers, Cent. Dig. 88 361-366; Dec. Dig. 183.] 4. PLEADING 192(2)-DEMURRER "NEGLI

GENCE"-"NEGLIGENTLY."

Pleading negligence in general terms, as that a defendant railroad receiver carelessly and negligently caused a railway coach to be suddenly and violently started over and along the line of its railway at a certain place without warning to plaintiff's decedent is sufficient on demurrer, since, if defendant desires a more definite statement of the acts or conduct relied on as negligence, he may move for an order requiring the complaint to be made more specific, for "negligence" is a failure to use ordinary care under the circumstances, and an allegation that an act was "negligently done" amounts to saying that ordinary care required that it should not have been done at all, or that it should have been done in some other way, and that the doing of the act was not consistent with the exercise of ordinary care under the circumstances. [Ed. Note-For other cases, see Pleading, Cent. Dig. 88 409, 410; Dec. Dig. 192(2). For other definitions, see Words and Phrases, First and Second Series, Negligence; Negligently.]

[blocks in formation]

Affirmed.

Lesh & Lesh, of Huntington, and E. C. Vaughn, of Bluffton, for appellant. Earl J. Walker, of Chicago, Ill., and Simmons & Dailey and Cline & Cline, all of Huntington, for appellee.

LAIRY, C. J. Appellee recovered a judgment of $7,500 as damages occasioned by the death of John W. Mauger through the negligence of appellant in the operation of the railroad of which he was receiver.

The complaint consists of five paragraphs, to each of which a demurrer for want of facts was addressed, which demurrer was overruled. By the first and fifth paragraphs it was alleged that on the 14th day of December, 1912, John C. Curtis was duly appointed receiver of the Cincinnati, Bluffton & Chicago Railroad Company, and that he was operating that road as a common carrier at the time of the accident to plaintiff's deceased. These paragraphs also allege that leave was first asked and granted by the Huntington circuit court to maintain this action against such receiver. The second, third, and fourth paragraphs of complaint do not allege those facts, and appellant asserts that the demurrer to these paragraphs should have been sustained for that reason, and that the action of the court in overruling the demurrer to such paragraph is reversible error.

In the case of Barton v. Barbour, 104 U. S. 126, 26 L. Ed. 672, it was held that leave of the court appointing a receiver must be obtained as a jurisdictional prerequisite to maintaining an action against him in another jurisdiction. This case has been followed in this state, where it was held that a complaint against a receiver was insufficient for

[Ed. Note. For other cases, see Carriers, Cent. Dig. 88 1273, 1275; Dec. Dig. want of facts where it contained no allega314(2).]

6. CARRIERS 347(3) TRIBUTORY NEGLIGENCE JURY.

PASSENGERS

CONQUESTION FOR Plaintiff's decedent was not negligent as matter of law in walking down into the yards to

tion showing that leave to bring the action had been obtained from the court which appointed such receiver. Keen v. Breckenridge, Rec., 96 Ind. 69. In some states it is held that permission to bring an action against

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

a receiver from the court making the appointment is not essential to jurisdiction even when the action is brought in another court. Kinney v. Crocker, 18 Wis. 74; St. Joseph & R. R. Co. v. Smith, 19 Kan. 225; Allen v. Central R. Co., 42 Iowa, 683. These cases hold, in substance, that the court appointing the receiver has the undoubted right | to draw to itself all controversies to which such receiver is a party, but that it does so only by acting directly upon the parties, as by proceedings for contempt, injunctions, or stay of proceedings, and that, if its authority in equity is not interposed to arrest the progress of the case, the judgment of the court in which the action is brought cannot be questioned because of such want of authority.

has been held repeatedly that an allegation of this kind is sufficient to make a complaint good as against a demurrer. If appellant desired a more definite allegation of the acts or conduct relied on as negligence, he should have made a motion for an order requiring the complaint to be made more specific. Negligence is a failure to use ordinary care under the circumstances, and an allegation that an act was negligently done amounts to saying that ordinary care required that it should not have been done at all or that it should have been done in some other way and that the doing of the act was not consistent with the exercise of ordinary care under the circumstances. Tippecanoe Loan & Trust Co. v. Carr, 40 Ind. App. 125, 78 N. E. 1043.

[5] The negligence charged in the fourth paragraph is that the car and engine used by appellant was not equipped with automatic couplers as required by the statute of this state. Appellant asserts that this paragraph fails to allege that the negligence in failing to use automatic couplers caused the injury of which appellee complains. There is no merit in this contention. This paragraph directly alleges that plaintiff's decedent was suddenly and violently struck by the car which was caused to be moved over and along the defendant's railroad at said place by reason of the aforesaid negligence. Such an allegation is sufficient in the absence of a motion for an order to make the complaint more specific. There was no re

[1, 2] As before stated, Indiana belongs to the list of states which follow the rule adopted by the Supreme Court of the United States. As a reason for this rule it is stated that it is necessary to prevent one creditor or set of creditors from obtaining an undue advantage over others in the enforcement of their claims; otherwise courts outside the jurisdiction of the court which appointed the receiver might proceed to judgment and sell the property within their reach under execution, and the appointing court would be powerless to prevent the injustice. Beach on Receivers, § 655. The reason of the rule as thus stated can have no application where the action against the receiver is brought in the same court which appoint-versible error in overruling the demurrer to ed him. Payson v. Jacobs, 38 Wash. 203, 80 Pac. 429; Mavor v. Northern Trust Co., 93 Ill. App. 314; Ratcliff v. Adler, 71 Ark. 269, 72 S. W. 896. In states where the law and equity side of the court are still preserved there might be some reason of the rule as receivers are appointed by the equity side and the action brought in the law side; but in this state all distinctions between actions at law and suits in equity as to plead-killed. It appears that the railroad company ing and practice are abolished. Burns 1914, $249.

[3] This action having been brought in the court which appointed the receiver, leave of court to bring the action was not a prerequisite to the court's jurisdiction, and the want of such an allegation in the complaint does not render it insufficient to withstand a demurrer.

the several paragraphs of complaint.

The record discloses that appellant was engaged as receiver in operating the Cincinnati, Bluffton & Chicago Railroad as a common carrier of passengers, and appellee's decedent purchased a ticket and desired to take passage on a car propelled by steam power which was due to leave Huntington at about 7 o'clock p. m. on the day he was

which appellant was operating did not maintain a regular station and platform at Huntington where passengers were received and discharged, but that it was its custom to receive passengers at a cement sidewalk on Front street just north of its terminal grounds. On the evening of the accident the car had been placed at this sidewalk for the purpose of receiving passengers, but for some reason it coasted down into the yards about 150 feet from the street where it was standing without any locomotive attached at the time appellee's decedent desired to get on board. Having purchased a ticket, appellee's decedent walked down the track approaching the place where the car was standing with the intention of entering said While he was ap

[4] Appellant claims that the several paragraphs of the complaint are insufficient in that they fail to charge negligence, and also fail to charge that the negligence of appellant was the proximate cause of the injury. We have examined each of the paragraphs, and find that none of them is open to the objections urged. Appellant asserts that it is not a sufficient statement of the negligence coach as a passenger. of appellant to allege that appellant careless-proaching from the north an engine was aply and negligently caused the coach to be proaching from the south for the purpose of suddenly and violently started over and along the line of its railway at said place without warning to plaintiff's decedent. It

forming a coupling with said coach. When appellee's decedent was within a few feet of the rear end of the coach the engine struck the

that he was not a man of sober and industrious habits. Such evidence, if admitted, could have produced no other effect than to prejudice the minds of the jury.

The motion for a new trial was properly overruled.

other end with great force, causing it to move | person at that time would furnish no proof rapidly backward about two-thirds of the length of the coach. In moving backward the coach struck appellee's decedent, who was walking between the rails, and caused his death. The cause of the locomotive's striking the coach with such violence was the failure of the air brakes to work. Appellant does not deny negligence on the part of his employés, but asserts that the evidence and the facts found by the jury in answer to interrogatories show that appellee's decedent was guilty of contributory negligence.

[6] The court did not err in overruling appellant's motion for judgment on the interrogatories notwithstanding the general verdict. It cannot be said as a matter of law upon the facts there found that appellee's decedent did not exercise ordinary care. These answers show that, if he had waited at Front street, the coach would have been backed up, and that he could have boarded it at the usual place, but there is evidence

to show that a brakeman in the employ of

Judgment affirmed.

(186 Ind. 391)

SECURITY TRUST CO. OF ROCHESTER
NEW YORK et al. v. MYHAN.

(No. 22761.)

(Supreme Court of Indiana. Dec. 12, 1916.) 1. APPEAL AND ERROR 327(2)-PARTIES ON APPEAL APPELLEES-RECITAL IN JUDGMENT.

[ocr errors]

A recital in the entry before the judgment, not in the judgment itself, that the court rendered judgment for the plaintiffs and against the defendants, is not conclusive that defendants, not joining in the appeal, need not be joined as appellees.

[Ed. Note.-For other cases, see Appeal and Dec. Dig. 327(2).]

Error, Cent. Dig. §§ 1795, 1814, 1831, 1834;

2. APPEAL AND ERROR 327 (2)-PARTIES ON APPEAL-APPELLEES-RECITAL IN JUDGMENT.

The relation which a party bears to a judgment is not determined necessarily by the phraseology of the judgment, but if he is interested in having the judgment sustained on appeal, he must be joined as an appellee.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1795, 1814, 1831, 1834; Dec. Dig. 327(2).]

3. WILLS 361-PROBATE-SETTING ASIDE OF

-APPEAL-APPELLEES-DETERMINATION

INTEREST.

to

appellant told the passengers waiting at Front street to go down to where the coach was standing. The answers show that in approaching the car he walked between the rails, and that he was between the rails when the car was pushed against him; that the entrance to the car was on the side, and not at the end; that the locomotive approached from the roundhouse on a curved track; and that the bell was ringing as it left the water tank, 300 feet distant from the coach, but that it was not rung afterward as the engine approached the coach. One answer showed that appellee's decedent did not know, of the approach of the locomotive to the coach and that he could not have discovered Its approach by looking and listening. The answers also show that he could not have walked by the side of the track in safety as he approached the coach on account of obstructions consisting of gravel piles, weeds, and holes in the ground. Under such a state of facts the question of contributory negligence was clearly one for the jury. This 4. WILLS 361-PROBATE-SETTING ASIDE— question was determined by the general ver- APPEAL-APPELLEES.

While the court cannot speculate as reason of the judgment, it must determine that whether omitted parties would gain or lose by fact as it appears from the record, and where the record shows that beneficiaries joined as defendants in proceedings to set aside the probate of the will were also heirs, and that they admitted the allegations of the complaint, and thereafter aided plaintiff during the trial, their position is clearly adverse to the other defendants, who were seeking to sustain the will, and they must be joined as appellees.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 826; Dec. Dig. 361.]

dict against appellant, and is amply support-is in default can appear only for purpose of A party who has been personally served and ed by the evidence. having the default set aside, or of contesting the amount of damages assessed against him, but those who are constructively served can, in view of Burns' Ann. St. §§ 627, 628, authorizing parties against whom the judgment has been rendered without other notice than by publication to have the judgment opened within five years after its rendition, and in order to expedite the final settlement of controversies, appear and answer at any time while the case is in fieri. and such action sets aside the default, so that, when defendants, served by publication, against whom default was entered in proceedings to set aside a will, thereafter appeared and joined the plaintiffs in seeking to have the will set aside, they must be joined as appellees in the appeal from the judgment setting it aside.

Instruction No. 10 given by the court is not open to the objection urged against it. [7] A witness introduced by appellee testified that he knew the habits of deceased with reference to sobriety and industry, and that they were good. On cross-examination appellant asked this witness if he did not know that a bottle of whisky was found in his pocket at the time his body was taken from under the coach. The court very properly sustained an objection to this question. It is not claimed that there was any evidence in the case to show that decedent was intoxicated at the time he was injured, and proof that he had a bottle of whisky on his

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 826; Dec. Dig. 361.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[ocr errors]

Appeal from Probate Court, Marion Coun- for the plaintiff," the persons above named ty; Frank B. Ross, Judge.

Suit by Anna Myhan against the Security Trust Company of Rochester, N. Y., trustee, and others, to set aside the probate of the last will of Catherine Farley, deceased. From a judgment setting aside the will, the named defendant and some of the other de fendants appeal. Appeal dismissed.

Miller & Dowling, of Indianapolis, for appellants. Walker & Hollett, of Indianapolis, for appellee.

SPENCER, J. Appellee instituted this action against appellants and others for the purpose of setting aside the probate of the last will and testament of Catherine Farley, deceased, together with a codicil thereto, and to have each instrument declared null and

void on the statutory grounds. Among those named as parties defendant to appellee's complaint were Martha B. Schwable, Ida E. Schwable McDonald and Laura M. Schwable, who were nieces of the testatrix and bene ficiaries under the codicil. All of the defendants to the action are nonresidents of the state of Indiana, and service was had on them by publication. At the time proof of publication was made appellee moved for a default as against certain of the defendants, including the three above named, and such default was regularly entered of record. Subsequently, and before the trial, however, the two Schwables and Mrs. McDonald appeared to the action and, without objection, filed an answer in which they admitted in full the allegations of appellee's complaint. Trial was had and a verdict reached which declared invalid each of the instruments in suit, and on which a judgment was rendered in accordance with the following entry:

"And now the court upon its own motion renders judgment on the verdict of the jury, against the defendants and for the plaintiff. It is therefore adjudged and decreed by the court that the instruments of writing heretofore probated as the last will and testament, with codicil thereto, of Catherine Farley, deceased, and the probate thereof, be, and are now set aside and declared null and void, and said instruments held for naught. It is further adjudged and decreed by the court that the costs herein be taxed against the estate of Catherine Farley, deceased."

The defendants Security Trust Company, trustee, William R. Taylor, executor, and trustees of the Brick Church in Rochester subsequently filed a motion for a new trial, which was overruled, and this appeal taken. The plaintiff alone is named as party appellee in this court, and she has filed a motion to dismiss the appeal on the ground, among other things, that the two Schwables and Mrs. McDonald are coparties in interest with her in the judgment below, and should have been named as appellees on appeal in order to give this court jurisdiction of the proceeding.

[1] Appellants assert that as judgment was rendered "against the defendants and

were coparties with appellants to said judgment, and need not be included in the assignment of errors in this, a term time appeal. It must be noted, however, that the record statement relied on is not a part of the judgment proper, but of the entry which precedes such judgment.

[2] Furthermore, the relation which a party bears to a judicial decree is not determined necessarily by the phraseology used therein, but by the effect of that decree on his interests. If he is interested in having such judgment or decree sustained on appeal, he becomes, in effect, a defendant in the appellate tribunal, and must there be named as an appellee. 3 Corpus Juris, 1014, § 970, and

cases cited.

[3] We concede appellants' position that this court may not speculate as to whether certain omitted parties would ultimately gain or lose by reason of the judgment below, but it can and must determine that fact as it We have already noted appears of record. that the Schwables and Mrs. McDonald, although named originally as defendants, en tered an appearance by counsel and filed an answer, in which they admitted the allegaThe record tions of appellee's complaint. further shows that they are heirs at law of the deceased, that Martha B. Schwable testified at the trial as a witness for appellee, and that one of their attorneys represented appellee in the taking of depositions at Rochester, N. Y. Their position at the trial was clearly adverse to that of appellants and in harmony with that of appellee, and, unless that position was affected by the taking of a default against them, they should have been named as appellees on appeal.

[4] The rule is well settled that where personal service is had on a defendant and he is defaulted, he has no standing in the trial court except for the purpose of having the default set aside or of contesting the amount of damages assessed against him, if any. Fisk v. Baker, 47 Ind. 534, 546; Marion, etc., R. Co. v. Lomax, 7 Ind. 406. But it is equally well settled that when the service of process is constructive only, as, by publication, it has much less force as an admission, and stricter and more complete proof is required of the plaintiff to obtain judgment. 23 Cyc. 753, and cases there cited. Furthermore, it is provided by statute that:

"Parties against whom a judgment has been rendered without other notice than the publication in the newspaper herein required, except in cases of divorce, may, at any time within five years after the rendition of the judgment, have the same opened, and be allowed to defend," on the giving of certain notices. Sections 627, 628, Burns 1914.

The policy of the law is to foster the just and speedy settlement of litigation, and to that end it will encourage the adoption of rules of practice and procedure which make for an early and complete disposition of every controversy. Provision has been made

[Ed. Note.-For other cases, Cent. Dig. §§ 11, 15-20; Dec. Dig. 12(5).1 see Carriers, 4. CARRIERS 12(5)-REGULATION OF RATES -DISCRIMINATION REASONABLENESS

RATE.

--

OF

izing the Commission to investigate complaints Under Burns' Ann. St. 1914, § 5537, authorof discrimination in railroad rates, the Commission can order a railroad to cease charging a consumer of coal a rate higher than that charged to competing consumers, without finding that the rate actually charged was unreasonable.

for acquiring Jurisdiction over nonresident | lower rate, and involves a complex method of defendants in order that a cause may be computing the portion of the coal used to proheard and determined in all its parts; but, as duce electricity furnished to such manufacturers. against defendants who are served only with constructive process, the judgment does not become, in all things, final until after five years. To obviate this uncertainty as to the effect of a judicial decree, the right should be accorded to a nonresident defendant to appear and file answer at any time while the cause remains in fieri, and such action on his part will operate in itself to set aside the entry of the formal default. Haskins V. Spiller, 33 Ky. (3 Dana) 573. This rule is applicable whether the proceeding is in rem or in personam, and, as applied to this case, serves to extinguish the default entered against Martha B. Schwable, Laura M. Schwable, and Ida E. Schwable McDonald ty; Charles Remster, Judge. at the time proof of publication was made. Appellants' further reference to a subse quent default entered in the case and to a stipulation of counsel which was offered in evidence at the trial need not receive extended consideration, for the reason that they do not affect all of the parties just named, and the omission of any one from the assignment

of errors is fatal.

[blocks in formation]

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 11, 15-20; Dec. Dig. 12(5).j

Appeal from Circuit Court, Marion Coun

Action by the Vandalia Railroad Company and others to set aside an order of the Indiana Railroad Commission, predecessor of the Public Service Commission. ment for the Commission, and plaintiffs apJudgpeal. Affirmed.

B. Cockrum, Samuel O. Pickens, and Owen Frank L. Littleton, J. E. Kepperley, John Pickens, all of Indianapolis, for appellants. Bell, Kirkpatrick & Voorhis, of Kokomo, and Elam, Fesler & Elam, of Indianapolis, for appellee.

MORRIS, J. Action by Vandalia Railroad Company and four others to set aside an or

VANDALIA R. CO. et al. v. PUBLIC SERV-der of the Indiana Railroad Commission,

ICE COMMISSION. (No. 22553.)

(Supreme Court of Indiana. Dec. 12, 1916.) 1. CARRIERS 18(1) REGULATION OF RATES ENFORCEMENT ог ORDERS -QUESTIONS PRESENTED.

[Ed. Note. For other cases, see Carriers, Cent. Dig. 88 13, 16-18, 20, 24; Dec. Dig. 18(1).]

2. CARRIERS 13(2)-REGULATION OF RATES -DIFFERENT RATES ON SAME PRODuct.

predecessor of appellee, Public Service Commission. Act 1913, § 4, p. 169; section 10052d,

Burns 1914. As shown by appellee's answer, and by the evidence, appellants operate railroads running between Kokomo and the coal On petition by a consumer of coal for an fields of Southwestern Indiana. In 1906, aporder compelling carriers to transport coal for pellants, with the assent of the State Railit at the rate theretofore fixed for manufac- road Commission, fixed the following rates turers who ship their products outbound over the carriers' lines, instead of at the rate fixed per ton for transporting coal from the mines for other manufacturers, the validity of the to Kokomo: 65 cents for coal used by manuorder fixing the former rate cannot be ques-facturers furnishing products outbound over tioned. the railroads; 75 cents for that used for other steam purposes, and 85 cents for that used in domestic consumption. These rates are still in effect. Previous to 1911 the Kokomo, Marion & Western Traction Company, a corporation, was engaged in operating a street and interurban railway and an elec tric lighting plant at Kokomo, and was also engaged in furnishing to manufacturers elec tric current for power to operate their factories. It used about 30,000 tons of coal per annum, which was shipped from said Indiana mines. About one-third of this amount was consumed in the manufacture of current for the factories supplied by it. These fac tories manufactured outbound products. The An order, requiring the carriers to grant lants to pay a rate of 75 cents for all its traction company was compelled by appelsuch rate, is not unreasonable because it imposes upon them the duty of inspecting electric coal. Manufacturers of Kokomo, producing meters installed in factories entitled to the outbound wares, were charged 65 cents. In

Where a lower rate was established for coal shipped for manufacturers whose products outbound were transported over the railroads than for other manufacturers, a corporation, operating an electric railway and supplying electric current for lighting and power, is entitled to the lower rate on that portion of its coal used in producing power which is furnished to manufacturers who shipped their product over the

railroad.

[Ed. Note. For other cases, see Carriers, Cent. Dig. 88 22, 24; Dec. Dig. 13(2).] 3. CARRIERS 12(5)-REGULATION OF RATES -REASONABLENESS OF Order.

« PreviousContinue »