7 Ind. App. 597 | Ind. Ct. App. | 1893
This appeal is prosecuted from a judgment rendered in an action brought by the appellee against the appellants for trespass, in injuring appellee’s real estate, by wrongfully entering and depositing large quantities of earth thereon. The action was commenced in the Madison Circuit Court, and the venue changed, on the application of the appellants, to the Henry Circuit Court. Before making the application for a change of venue, the
Section 339, R. S. 1881, provides that “the defendant may demur to the complaint when it appears upon the face thereof, either — first. That the court has no jurisdiction of the person of the defendant or the subject of the action”; and section 343, R. S. 1881, provides that when any of the matters enumerated in section 339 as cause for demurrer, except for misjoinder of causes, do not appear upon the face of the complaint, the objection may be taken by answer, and all objections not taken, either by demurrer or answer, shall be deemed waived, except only the objection to the jurisdiction -of the court over the subject of the action, or that the complaint does not state facts sufficient to constitute a cause of action: Provided, however, That the objection that the cause was brought in the wrong county, if not taken by answer or demurrer, shall be deemed to have been waived.
A personal judgment rendered by a court without having acquired jurisdiction of the persons against whom it is rendered, either by personal service of process or by appearance, is absolutely void, and will be so treated, even in a collateral attack. Mitchell’s Admr., v. Gray, 18 Ind. 123; State, ex rel., v. Ennis, 74 Ind. 17; Cavanaugh v. Smith, 84 Ind. 380.
“Objections to the jurisdiction over the person must be taken, in the first instance, by demurrer, if the want of jurisdiction appears upon, the record, and by plea or answer setting up the facts showing the want of jurisdiction, if the facts do not otherwise appear of record.”
Jurisdiction over the person, however, is admitted by a full appearance to the action. Eldridge v. Folwell, 3 Blackf. 207; Shirley v. Hagar, 3 Blackf. 225; Lane v. Fox, 8 Blackf. *58; New Albany., etc., R. R. Co. v. Combs, 13 Ind. 490; Free v. Haworth, 19 Ind. 404; Cox v. Pruitt, 25 Ind. 90; Smith v. Jeffries, 25 Ind. 376; Garner’s Admr. v. Board, 27 Ind. 323; Street v. Chapman, 29 Ind. 142; Hamrick v. Danville, etc., Gravel Road Co., 32 Ind. 347; Aurora Fire Ins. Co. v. Johnson, 46 Ind. 315; Slauter v. Hollowell, 90 Ind. 286.
An action to .recover damages for trespass to real estate is local in its nature, and can be brought only in the county in which the premises are situated. Ham v. Rogers, 6 Blackf. 559; Prichard v. Campbell, 5 Ind. 494; Loeb v. Mathis, 37 Ind. 306; Du Breuil v. Pennsylvania Co., 130 Ind. 137.
Section 307, R. S. 1881, provides that “actions for the following causes must be commenced in the county .in which the subject of the action, or some part thereof, is situated: First. For the recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest, and for injuries to real property. ”
Jurisdictions over the subject-matter was in the Madison Circuit Court, and this action could not be brought in any other county and the court have jurisdiction of the subject-matter. The statute having defined the court having jurisdiction over the subject-matter of the action, the action must be brought in that court, and jurisdiction over the persons of the defendants, who were residents of another county, must be obtained in some manner provided by the statute, if any such provision has been made.
We have a statute now, however, which specially provides that in cases of this kind process may issue to and be served in any county in the State. Section 308, R. S. 1881.
It is not contended, by the appellants, that the process was irregular or was insufficient, but simply that the action should have been brought in the county in which one or the other of them resided, and not in the county where the trespass was committed. We think their contention untenable, in view of the statute and the many cases already cited. There was no error in sustaining the demurrer to the plea in abatement.
The sufficiency of the complaint is assailed in this court only, by an assignment that it does not state facts
The error assigned, to which our attention has been more particularly called, and upon which the appellants rely for a reversal of the court below, relates to the ruling of the court in sustaining the demurrer to the second paragraph of their answer. In this answer, it is averred that the real estate, upon which the trespass is alleged to have been committed, abuts on a public street in the city of Anderson, along which the common council of said city, prior to the alleged trespass, ordered a sewer to be constructed, the same being located in said street immediately adjoining the appellee’s property, the necessary resolutions for the improvement having been passed, and the notice of their passage, of the assessments of damages and benefits, and of the letting of the contract for the work having been given; that the appellants were awarded the contract, by said common council, for the construction of said sewer according to the plans and specifications adopted by them therefor; that appellants “proceeded to the execution of said work and executed the same in all respects according to the plan and specifications therefor, and that the acts complained of were necessarily done in the necessary excavation and completion of said work, and in no other way or manner, and for no other purpose.”
The contention of appellants is, that, .if the construction of the sewer necessitated the placing of earth upon appellee’s property, in making the proper excavations, and they alleged it was, whatever injury she might sustain thereby was taken into consideration in assessing her damages and benefits, and that she has no right of action against them therefor.
Under the act of March 8,1889, p. 237 (Elliott’s Supp., sections 812-821), special provision Has been made for the construction of sewers by cities and incorporated towns along streets and alleys, but no right is conferred by that act, or any other, to the knowledge of this court, to take private property without first having the damages assessed and tendered.
From the facts alleged in the answer under consideration, it is shown that the sewer which the appellants undertook to build was to be built on and along a street upon which appellee’s property abutted; that notice of the passage of the resolution for said improvement was published at a time and. place, “when and where all property owners along the line of said proposed improvement could make objection to the necessity for the'construction of said work.”
The power granted to the appellants, by the city of Anderson, to construct a sewer along one of its streets, conferred no authority on them to go beyond the limits of the street and enter upon the premises of the appellee, neither did it authorize them to put dirt upon her lands, either to her inconvenience or the injury of her property. The answer wholly fails to show any right to do the acts complained of; hence, there was no error in sustaining the demurrer to it.
It is also urged that if there is any liability for the acts complained of, it exists against the city, and not against the appellants. This contention is not tenable. The city of Anderson could not authorize the appellants to do an unlawful act so as to shield them from liability. It granted them the right to construct a sewer along one
Judgment affirmed.