131 Ind. 330 | Ind. | 1892
This suit was begun in the Howard Circuit Court. The appellants asked a change of venue, and the case was sent to the Clinton Circuit Court, and from that court it was sent by change of venue, to the Grant Circuit Court, where it remained, duly docketed, from the 27th day of November, 1886, until the 22d day of February, 1887. On the day last named the Grant Circuit Court, on its own motion, ordered the case back to the Clinton Circuit Court. The case reached that court on the 29th day of March, 1887, and, on the 14th day of June, 1889, the appellants were called and the cause submitted to the Clinton Circuit Court for trial as upon the failure to appear for trial. A judg
The change from the Clinton Circuit Court was granted upon the application of the appellee, and there was no objection to the order directing that the case should go to the Grant Circuit Court. Presumptively, therefore, the case went to the latter court through the instrumentality of the appellee. She applied for the change, and it was her duty to perfect it; hence we must assume that this duty wras performed. As the appellee obtained the change and was instrumental in carrying thé case to the Grant Circuit Court, she is not in a situation to successfully assert that the case was not properly in that court, unless she can make it appear that there was no jurisdiction over the subject resident in that tribunal.
It seems quite clear that if the parties had appeared and tried the case in the Grant Circuit Court, neither could have successfully urged that the proceedings were coram non jur dice. There was general jurisdiction of the subject and of the persons, and where such jurisdiction exists the proceedings are not void. There is an essential and clear distinc
It is illustrated, also, in the cases which hold that, although an action may be brought in the wrong State or county, there, may be jurisdiction where there is no seasonable objection. Indianapolis, etc., R. R. Co. v. Solomon, 23 Ind. 534.
The difference between jurisdiction of the subject and jurisdiction of the particular instance is stated and discussed in Jackson v. Smith, 120 Ind. 520 (522), State, ex rel., v. Wolever, 127 Ind. 306 (315), McCoy v. Able, post, p. 417 and Yates v. Lansing, 5 Johns. 282. The decision in Perrill v. Nichols, 89 Ind. 444, even if sound, is not in point, for the reason that in that case there was no general jurisdiction. Here there was general jurisdiction over the general class of cases to which this case belongs. There was, at all events, much more than a naked usurpation of jurisdiction by the Grant Circuit Court.
The Grant Circuit Court did assume jurisdiction over the case under color of right and by invitation of the appellee. The case was placed upon its docket, was. there for some months, and was once formally continued. There was, therefore, an assumption of jurisdiction by one court of general jurisdiction of a cause sent to it by another tribunal of equal rank, and we do not think it can be held that the court which assumed jurisdiction was an usurper. If it was not, there was jurisdiction; if jurisdiction, the case could only pass from that court by a judgment, for there was no right to arbitrarily transfer it to another tribunal.
The record shows that the appellee secured the change of venue, and, as we have seen, the presumption is that the case was sent to Grant county by her procurement. If it was, she is in no situation to assail a ruling invited by her own act; at all events, she is not in a situation to be permitted to take an unconscionable advantage' of her adversaries, and this she would be allowed to do if awarded a judgment in a case where there is a meritorious and valid defence, as we must assume there is in this instance.
We think it clear that the appellants’ motion to set aside the judgment should have been sustained. They had a right to act upon the assumption that the case was still in the court to which it was sent upon the appellee’s application. If the appellee had there taken judgment in due course, it
The appellants are in error in assuming that where parties fail to appear where a causé is called for trial, a jury must be impanelled to try the cause. The decision in Terrell v. State, ex rel., 68 Ind. 155, is in direct opposition to the statute, and was expressly overruled in Love v. Hall, 76 Ind. 326. The appellants are also in error in asserting that the cause is triable by a jury in any event. It is a suit to enforce a lien, and such suits are, as has been again and again decided, triable by the court.
The complaint is undoubtedly sufficient to entitle the appellee to a money judgment, and if good only to that extent, it will prevail against a demurrer. Bayless v. Glenn, 72 Ind. 5. But we adjudge that the facts pleaded entitle the appellee to a lien upon the land described in the complaint, inasmuch as the facts pleaded show payment of part of the purchase for land upon a contract which the vendor can not or will not perform. Where a vendee pays money to the vendor upon a contract for the conveyance of the land, and the latter can not or will not convey, the former may enforce a vendee’s lien for the money paid upon the contract of purchase.
Judgment reversed.