133 Ind. 147 | Ind. | 1892
A question of jurisdiction is in the record, and must he determined. The amount recovered in the court below was four hundred dollars, and there is no specific decree, so that, on the face of the judgment, it apjtears that there was a recovery of money only. Both parties contend that jurisdiction is in this court, and not in the Appellate Court, but the grounds upon which they assert that jurisdiction resides in this court are widely different. The agreement of the parties that this court has jurisdiction does not affect the question, for it is established law that consent can not confer jurisdiction of the subject matter. See authorities cited, Elliott’s Appellate Procedure, sections 13, 418, 498. A court must look to the law for its jurisdiction of the subject, and must, notwithstanding the agreement of the parties, decline to entertain jurisdiction if it is not conferred by the law. AVe must, therefore, ascertain and determine whether this appeal is within the jurisdiction of this tribunal, or within that of the Appellate Court.
The Supreme Court is undoubtedly the highest judicial tribunal of the State, and takes its rank from the Constitution. As its rank is bestowed upon it by the Constitution, the Legislature can not lower that rank or deprive it of the authority incident to its position as the superior judicial tribunal of the State. Judicial power is an element
The contention of the appellee’s counsel that the act creating the Appellate Court is unconstitutional in so far as it regulates practice in the courts by providing for the transfer of cases from one docket to the other, because such a provision is special legislation upon a subject where general legislation is required by the Constitution, can not prevail. We freely grant that if the legislation is to be regarded as special, the conclusion 'of counsel would be correct, for the Constitution requires that the practice of the courts shall be regulated by general laws, but we are clear that the legislation can not be regarded as special. The statute makes a general classification of cases, and the classification is not in any sense such as justifies the conclusion that it singles out particular cases; so that the provisions of the Constitution requiring laws requiring the practice in the courts of the State to be general are not impinged or violated. We are referred by counsel to the case of the Madison, etc., R. R. Co. v. Whiteneck, 8 Ind. 217, wherein it was held that a statutory provision inflicting a penalty upon railroad companies, in case of a failure to reduce a judgment from which an appeal was prosecuted, was unconstitutional. Assuming that the doctrine of the case is sound, we deny that it governs the present question. The statute creating the Appellate Court does-not apply to one class of litigants, as did the statute overthrown in the case cited; it applies to all litigants, and makes no attempt to classify by individuals or parties. The basis of the system of classification is the difference in classes of cases, and not in the situation of parties or persons. The statute is general and uniform, inasmuch as it makes a general classification, and operates uniformly upon all the classes included in the system adopted. Hancock v. Yaden, 121 Ind. 366; State v. Loomis, 46 Neb. L. J. 488. If the position of appellee’s counsel is correct, it
The provisions of the statute creating the Appellate Court, and authorizing the transfer to that court of cases appealed to this court prior to its enactment, are valid. There is no vested right in a remedy or in a tribunal. Remedies and tribunals may be changed by substitution without impairing vested rights. It may be granted that a remedy can not be entirely swept away or rendered utterly ineffective by the destruction of a tribunal, but granting this will not authorize the conclusion that the substitution of the Appellate Court for the Supreme Court, in a class of cases falling within a limited jurisdiction, impairs a vested right, for the parties have still a remedy and still a competent tribunal to administer that remedy. There is no necessity for deciding how far the Legislature may go in destroying judicial tribunals, for here the Appellate Court is a legal tribunal in which all appeals over which it is given jurisdiction may be heard and determined; so that there is neither a complete destruction of a remedy, nor the utter annihilation of a tribunal for the administration of the remedy.
The provisions of the statute empowering the Appellate Court to transfer cases to the docket of this court, when ascertained to be within its jurisdiction, are valid; and so are the provisions of the statute empowering this court to transfer cases from its docket to that of the Appellate Court. It is true that the judgment or order of the Appellate Court can not conclude the higher court upon a question of its own jurisdiction, but this does not affect the validity of the general provisions concerning the transfer
We agree with the appellant’s counsel, that if the title to real estate is in question, the jurisdiction is in this tribunal. This court is the chief repository of appellate jurisdiction, and cases not expressly, or by clear implication, placed within the jurisdiction of the Appellate Court, remain in the original and chief repository of appellate jurisdiction. See authorities cited Elliott’s Appellate Procedure, sections 34, 47. The statute creating the Appellate Court expressly designates the classes of appeals of which it is given jurisdiction, and this express mention excludes implication. “The express mention of one thing implies the exclusion of others,” is here the ruling maxim. We are also of the opinion that where the title to land is directly and necessarily involved, it constitutes the principal element of the case, and that the principal carries with it all incidents; so that, if the title to land is necessarily and directly involved in the case, the jurisdiction is in the Supreme Court, although there may be nothing more than a mere money recovery. See Elliott’s Appellate Procedure, section 40, n. 1. Ibid, sections 36, 37 and notes. But where there is, on the face of the record, a simple judgment for money, and no specific decree, or no order afiecting the title to real estate, the case prima facie falls within the jurisdiction of the Appellate Court, and there it must go, unless it appears from the record that the title to real estate is so directly in issue as to constitute the principal and
As effective a practical test as can be found is supplied by the answer to the question: Is the effect of the judgment appealed from such as to divest one of the parties of title or to invest one of them with title? It is manifest that if the issues and judgment are of such a character as to settle the question of title and enable the parties to make use of the judgment as the basis of a plea of res adjudicata, in a controversy concerning the title, that jurisdiction is in this court; but it is equally evident that where the judgment can not be regarded as conclusively adjudicating the question of title, jurisdiction is in the Appellate Court, although the question of title may be incidentally or indirectly involved; provided, of course, there is asimple money recovery not exceeding the limit designated by the statute.
It is necessary to apply the general principles we have stated to this particular ease, and, as most often happens, there is more difficulty in the application of the principles than there is in ascertaining and announcing the principles themselves. To make the application of the principles enunciated, it is essential to exhibit, with some particularity, the result of our analysis of the record and briefs of counsel; and we begin this work by saying that the judgment is vested upon a special verdict, wherein many deeds are contained, but which appellant’s counsel affirm is insufficient, for the reason that it does not state facts showing title to the land described in it to be in the appellee, and they also assert that the evidence does not support the
“ The plaintiff and his successive grantors have had the actual, visible and continuous occupancy and possession of said mill, mill-race, mill-dam and appurtenance, adversely to all claims of other parties whatsoever, for a period of more than twenty years next before the commencement of this suit. They also refer to a finding contained in the verdict, “that the defendant did not, at the time of the commencement of the suit, own any part of the mill, race, dam or appurtenances.” They further direct attention to the fact that in the first paragraph of the complaint it is alleged that the plaintiff is the owner, and in possession of the land in .controversy; and they also direct, to the allegations in the fourth paragraph of the complaint, that the plaintiff, through the deeds therein set forth, “became the owner of the lands, mill-seat, and mill-race therein; and, also, to the averments concerning title by possession or limitation, described.” The appellee’s counsel contend that the first paragraiDh does not put in issue the ownership of the land, and that the allegation of ownership is satisfied by evidence of a possessory right. Of the fourth paragraph it is said that it pleads simply a prescriptive right, but it is elsewhere stated that facts are specifically pleaded showing title by possession, and is argued that title in incorporeal property may he acquired in fee, and in support of this proposition we are referred to Cooley’s Blackst., vol. 1, top p. 105; 1 Washburn on Real Property (5th ed.), top p. 87.
Appellant’s counsel assert that the law is that where a case is tried upon a definite theory, that theory must be adhered to on appeal, and they refer us to Elliott’s Appellate Procedure, sections 489, 490, 491. Chicago, etc., R. R. Co. v. Bills, 104 Ind. 13; May v. Reed, 125 Ind. 199; Pearson v.
Before we enter upon an examination of the question as to whether title can be put in issue in such a case as this, we think it proper to consider the argument of appellee’s counsel, based upon the proposition that it was not necessary to put the title in issue. We have no doubt that counsel are right in asserting that it was not necessary to put the title in issue, but this does not warrant the conclusion that the title was not put in issue and tried. A party may not be bound -to' put title in issue, and yet he may voluntarily make it an issue in the case. This .rule has been again and again applied in partition proceedings, for while it is not necessary to put the title in issue in such proceedings, a party may elect to put it in issue, and if he
In order to understand the question whether title can be ■put in issue in this case, it is necessary to give a somewhat fuller outline of the case, although it is not necessary to repeat all the allegations of the complaint concerning the •ownership of the land. The first paragraph of the complaint, after the allegations of ownership in the 'plaintiff, •charges that the defendant unlawfully and knowingly permitted his hogs and cattle to break and enter upon the land “ and injure the mill-race.” The fourth paragraph sets forth a deed executed to the appellee by Seaman and another, and, also, a deed from Mary Shaw and her husband, and avers that “by said deeds, together with the facts and deeds hereinafter stated, the plaintiff became the owner of the land in fee simple, andisnowtheowner thereof.” This avercnent is followed by other deeds, extending over a period of more than forty years, and by allegations that the remote grantors took and held continuous possession of the land involved in this controversy. The allegations concerning the trespass by the
Our ultimate conclusion upon this branch of the case is that the appellee did put the title in issue by the specific statements of title in the fourth paragraph of his complaint ; that the special verdict shows, upon its face, that the finding rests on the specific averments of title, and,, as the record thus shows, that title was in issue, and was. passed upon, the jurisdiction is in this court.
The position of counsel that the special verdict is bad, because it does not embrace all the issues, is untenable. If the assumption that the verdict does not cover all the issues be conceded to be valid, the conclusion deduced would not follow. It is the rule in this State, and long has been, that a special verdict is not bad as against a motion for a venire de novo, although it may not embrace all the issues. There has been some conflict and wavering upon this question, hut the authoritative decisions all assert the rule as we have stated it. See authorities cited Elliott’s Appellate Procedure, section 759. It is Avell settled that a motion for a venire de novo lies only where the verdict upon its face appears to be defective -in form; where it is against the evidence, or does not state a fact which the party believes the evidence establishes, the remedy is by a motion for a new trial. Young v. Berger, 32 N. E. R. 318, and authorities cited. "Where the facts stated entitle a party to judgment, the proper mode of procedure is by a motion for jiidgment; or, if the motion of the adverse party for judgment is sustained, the question of the sufficiency of the facts to support a judgment may be saA^ed by a proper exception. See authorities cited Elliott’s Appellate Procedure, sections 753, 754; Austin v. Earhart, 88 Ind. 182; Dixon v. Duke, 85 Ind. 434; Johnson v. Culver, 116 Ind. 278 (280). We do not doubt the correctness of appellant’s position that where damages only are recoverable the damages must be stated, or such facts stated as leave nothing for the court to do except to make a mere mathematical computation; but the
Our code requires that a judgment shall follow the verdict, but the failure to follow a verdict in rendering judgment is, plainly enough, no cause for a venire de novo. A failure to follow the verdict is not a cause for a venire de novo, nor is it a cause for a new trial, although it may be a sufficient ground for a motion to modify the judgment.
The decisions fully sustain the general rule asserted'by appellant’s counsel, that special verdicts must state ultimate facts and not conclusions of law or mere matters of evidence; but it is equally well settled that if sufficient facts to support a judgment are stated, the presence of conclusions of law or of matters of evidence will not vitiate the verdict. See authorities cited, Elliottfs Appellate Procedure, sections 753, 757. Terre Haute, etc., R. R. Co. v. Brunker, 128 Ind. 542; Faurote v. State, ex rel., 123 Ind. 6 (9). In this case our opinion is that all mere matters of evidence may be eliminated and enough remain to sustain a judgment. The elementary and familiar rule is that verdicts are to receive a reasonable construction and not be disregarded if, upon a reasonable construction, they can be sustained. It is quite difficult for the trained lawyer, with ample time and deliberation, to nicely and accurately draw the line between facts and evidence. There is, it is true, a difference, for facts are the result of proof, and evidence the
Where a special verdict states the general sum as the damages, it is not necessarily bad on a motion for a venire de novo, although the specific facts stated may not, in law, entitle the successful party to the damages specified in the general statement; for, where specific facts are stated, clearly enabling the court to fix the amount of the recovery, the appropriate judgment may be entered on the specific facts. The decisions in Baughan v. Baughan, 114 Ind. 73, and Carver v. Carver, 83 Ind. 368, can not rule where specific facts of a controlling nature appear- in the verdict; but in this instance a remittitur was entered, so that, if the general assessment was not warranted by the specific facts, no harm was done, and there can be no reversal. Intermediate errors will not reverse where the ultimate judgment is right. Authorities cited Elliott’s Appellate Procedure, sections 590, 633.
Assuming, for the sake of the argument, that the appellant’s counsel are correct in their contention that there is :no specific description or designation in the deed of the land covered by the mill-race in the first Miller deed, still, it will not follow that no right of ownership vested, for where a deed conveys an estate in property, it conveys everything essential to the enjoyment of the estate, or property granted. In Sheets v. Selden’s lessee, 2 Wall. 177, the Supreme Court of the United States thus stated the law:
“The objection that the deed does not cover the premises 'in controversy rests upon the fact that it does not convey the parcels of land, for which the action is brought, by specific designation and description. Such designation and description, though usual, are not always essential. Land ’will often pass by other terras. Thus, the grant of a messuage,-or a messuage with appurtenances, will carry the 'dwelling-house and buildings, and, also, its orchard, garden and curtilage. The true rule on the subject is this: 'That everything essential to the beneficial use and enjoyment of the property designated is, in the absence of language indicating a different intention on the part of the grantor, to be considered as passing by the grant. Thus, the devise of a mill and its appurtenances was held by Mr. Justice Story to pass to the devisee, not merely the building, but all the land under the mill and necessary for its use, and commonly used with it.”
Other illustrations are given by the court, and the following authorities are cited and approved: Shepherd’s Touchstone, 94; Sparks v. Hess, 15 Cal. 186; Whitney v. Olney, 3 Mason C. C. 289; Wise v. Wheeler, 6 Ired. 196; Blaine v. Chambers, 1 S. & R. (Pa.) 169. We add to the cases collected by the court in Sheets v. Selden, supra, the following: Mixer v. Reed, 25 Vt. 254; Johnson v. Raynor, 6 Gray 107; Cook v. Whiting, 16 Ill. 481; Brackett v. God
In the deed to which we have referred, executed on the 17th day of August, 1840, Miller conveyed to “William Maurie, his heirs, and assigns forever, all that certain tract or parcel of land and water privileges lying and being in the county of Randolph.” Immediately following the language quoted is a specific description of a parcel of land,, and following the specific description is this language: “ Said piece of land is to be for a site for the purpose of erecting a new mill, to be propelled by water coming through the before-mentioned race, and said Maurie is to have the privilege of widening said race if necessary, but not to make unnecessary waste of land along said race, and to have the privilege of cleaning and of keepi ng said race in repair at any time. The said Peter S. Miller to have the privilege of passing and repassing over said race at any time and at all times, and to have the privilege of putting Ms fences on the l’ace bank if necessary. The said William R. Maurie is to have the wheels, stones, and fixtures in the old mill-house; also, to have and to hold the appurtenances, thereunto belonging, and the reversions, remainders and profits thereof, and all the estate of the said Peter S. Miller in and to the same.”
It seems quite clear to us that the deed vested in the • grantee a fee in all the property mentioned. The clause “ all. that certain parcel or tract of land and water privileges,”' taken in connection with the other language of the deed,
If we are right in our construction of the first deed executed by Miller, then other deeds granting other privileges, confirming those previously granted, or granting other property, can not cut down the estate conveyed by the original deed. If a grantee once rightfully acquires-an estate in fee, it remains in him unless he subsequently divests himself of title. He may accept deeds strengthening his title or augmenting appertaining privileges without, losing title once fully vested. Here there is no element of estoppel nor any conveyance, but, on the contrary, operating against the appellee, there is continuous and uninterrupted possession for more than twenty years under a deed assuming to convey land, so that we can see no possible-reason for asserting that the grantee had lost his estate iufee.
Our ultimate conclusion is that whatever view may betaken of this case, whether the fee be held to have been created by deed, or to have been created by limitation, the law of the case and the mei’its are with the appellee.
Judgment affirmed.