Lead Opinion
Suit by the appellee against the appellants for trespass to real property, situate in Warren county, and so averred in the complaint, commenced .in the Fountain circuit court, and transferred to the court below by change •of venue. Trial by jury,, verdict for the plaintiff motion in .arrest of judgment overruled, and judgment.
The question presented by the motion in arrest, the overruling of which is assigned for error, is this: had the court "below jurisdiction of the subject of the action?
Thé complaint is in one paragraph. It is claimed by the counsel of the appellee that it contains two causes of action, ■ one for the trespass to the land, and the other for an injury to personal property. It is clear to our minds that the injury averred to the personal property is only a matter of ■aggravation of the damages.
Barnum v. Vandusen,
The learned judge, speaking for the court, says: “But here, the defendant’s sheep, while trespassing upon the plaintiff’s land, communicate to the plaintiff’s sheep a disease of which numbers of them die, and no sufficient justification being shown for the trespass, the question is, whether this communication of disease is such an injury as aggravates the damage occasioned by the trespass, and authorizes the plaintiff to recover damages for the loss of his sheep,, as well as for the breach of his close. We think, it is such an injury. Indeed, the rule is believed to be universal, that any consequential damage, resulting from the trespass, and not too remote, may be declared on as matter of aggravation, and if proved, damages maybe recovered for it.”
It was also held in that case, that it could be shown in evidence to aggravate the damages that the defendant knew that his sheep were diseased.
The code 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 properly, 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.” Sec. 28, 2 G & IT, 56.
Sections 50 and 54 of the code are as follows:
“ Section $0. 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; or, second, that the plaintiff has not legal capacity to sue; - or, third, that there is another action pending between the same parties for the same cause; or,- fourth, that there is a defect of parties, plaintiff or defendant; or, fifth, that the complaint does not state facts sufficient to constitute a cause of action; or, sixth, that several causes of action have been improperly united; and for no other cause shall a demurrer be sustained; and, unless
“Section 54. When any-of the matters enumerated in section fifty do not appear on the face of the complaint, the objection (except for 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, and except the objection that the complaint does not state facts sufficient to constitute a cause of actionThe words in italics were added by amendment in 1855. See Acts of 1855, p. 60.
Does section 28, supra, relate only to the venue, or is it jurisdictional?
If it relates only to the venue, it is clear that a demurrer would not lie where the objection appears upon the face of the complaint, and if in such case a demurrer is proper, then it is equally clear that the objection is not waived by a failure to demur or answer. The same words, “the subject of the action,” are used in both sections 50 and 54.
It cannot, with any fairness, be said that these words mean one thing in section 50, and another thing in section 54.
It is admitted that there is a difference between a wrong venue and the want of jurisdiction of the subject of the action. The Warren Circuit Court is a different tribunal from the Fountain Circuit Court. It is true that they are both circuit courts, but each exercises an independent jurisdiction. It is certainly in the power of the legislature to confer jurisdiction that shall be exclusive in each. If language can do this, it seems plain that section 28 of the code has done it.
This question has been repeatedly adjudged in this court.
In Brownfield v. Weicht,
“In Roach v. Damron,
In the case in 2 Humph., referred to by the court, it is expressly said, in speaking of the action (it being an action of trespass, for breaking and entering the plaintiff’s close), that, “ in its nature, it is a local action, the court of the county in which the land is situated alone-haying jurisdiction.”
In Parker v. McAllister,
In The New Albany and Salem Railroad Co. Huff,
In Vail v. Jones,
The code was passed in 1852. There has been a long line of unbroken decisions holding that this twenty-eighth section was one Of jurisdiction, and not of venue. In opposition stands the reasoning in The Indianapolis and Madison Railroad Co. v. Solomon,
These two classes of cases "are transitory in their nature. But as a rule of construction, it is thought that the position, that the fifty-fourth section of the code was only intended to except such want of jurisdiction over the subject-matter of the action as would make the proceedings coram non judice and void, is not tenable, for the plain reason that by its very terms it does embrace such want of jurisdiction as may be raised by an answer. When there is a total want of jurisdiction over the subject-matter of the action, it will appear on the face of the complaint. For instance, by no possible averments could it be made to appear in a complaint for the recovery of real property, that the common pleas court had jurisdiction of the subject of the action.
But it is suggested that this is a technical error, and that it is cured by sections ioi and 580 of the code. The former provides, that “the court must in every stage of the action disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party, and no judgment can be reversed or affected by reason of such error or defect.” If, then, this error is cured by this section, the provisions of the twenty-eighth section of the code are wholly without effect for any purpose; for it would be the duty of the court to disregard such an error at every stage of the action, as much at its commencement as at its termination. It will be noticed that all the cases enumerated in section twenty-eight of the code are such as may involve an investigation into the title of real property. Under our registry laws, deeds and mortgages are required to be recorded in the county in which the lands embraced therein are situate. It would tend greatly to the security of the substantial rights of defendants, to have the action in that class of cases commenced in the.county “in which the subject of the action is situate,” where the title could with facility be examined, and where the jury could with convenience examine the premises. It is true, there is ~nother class of cases in which this right is equally important, and the distinction made at the common law between actions for the breach of covenant in a deed of conveyance of land, and actions for trespass guare clausum fregit, is that which is regarded by Chief Justice Marshall in Livingston v. Jefferson,
It was suggested in argument that the affidavit for a change of venue shows that the defendants were not deprived of any substantial rights in not bringing the action in Warren county. It does not follow because there were local prejudices against the defendants in Warren county,'that they lost
The only part of the five hundred and eightieth section of the code that can have any bearing on this question is this: “Nor shall any judgment be stayed or reversed, in whole or in part, where it shall appear to the court that the merits of the cause have been fairly tried and determined in the court below.” If the court below had no jurisdiction, then there was no trial, and we cannot look to the record to see whether the merits of the cause were fairly tried.
The statute of 16 and 17 Charles II., c. 8, is not in force in this State. The statute of 1843 referred to in Dumont v. Lockwood,
If our construction of section fifty-four of the code is right, it follows that this objection was not waived by failing to demur or answer. If, however, we are wrong, then the objection cannot be raised either by demurrer or answer; for if it is not a want of jurisdiction of the subject
It is claimed that'in Newton v. Bronson,
'Denio, C. J., in speaking of the 123 d section of their code, said: “The latter branch of the statute is vague and indefinite, but the language is comprehensive, and it may perhaps embrace suits for a specific performance of contracts for the sale of lands, where they are situated in this State. It has been so held in the superior court of the city of New York, and I am inclined to assent to the views of that court. Ring v. McCoun,
It was held, that the court in which the action was brought had no jurisdiction. Sandeord, J., in speaking for the court, said: “To express our idea in a different form, when the subject of the action, not of a transitory nature, is situated in the county of Queens, that fact must govern as to our jurisdiction; although it may be true that the acts which furnish the grounds of the suit were all done in the city of New York, and in that sense the cause of action arose there.”
• It is suggested that The N. A. & S. R. R. Co. v. Huff is
The court below erred in overruling the motion in arrest 1 of judgment.
There are other questions argued by counsel; but as the court below had no jurisdiction of the subject of the action, they do not arise and have not been considered.
Judgment reversed with costs; cause remanded, with directions to sustain the motion in arrest of the judgment.
Dissenting Opinion
(dissenting). The question is not whether the suit should have been brought in Warren county, but whether, after they have appeared and pleaded to the merits in Fountain, obtained a change of the venue to Montgomery, found issues, gone to trial, and been defeated before a jury, the defendants can, for the first time, by motion in arrest, object that the suit should not have been brought in Fountain nor tried in Montgomery? If the law authorizes a party thus to trifle with the courts of general jurisdiction, to submit his cause to their adjudication, occupy their time and attention in hearing it, and then, when beaten upon the merits, to set up that all that has been done is a farce, it is certainly time that the law should be changed.
In The Indianapolis and Madison R. R. Co. v. Solomon,
If the Solomon case is bad law, it should be overruled, I grant. The question is one of practice, and with such questions greater liberties may be taken than with rules of property, upon the faith of which men make contracts or acquire titles. A rule of practice established in error, if found to embarrass the administration of justice, may, with little inconvenience, be corrected. It is very certain that the rule of the Solomon case would work well and never could be used as a trap to defeat just judgments, or in any way hinder the correct administration of the law. If the principle of that case is to be disapproved now, it must be, I think, not because it is mischievous but because it is in conflict with the statute.
By our law, suits for divorce are required to be brought in the circuit court of the county in which the petitioner is a a bona fide resident. This requirement is quite as imperative as the 28th section of the code is that any other suit must be brought in the county in which the subject of the action is situated. And' an action in personam, to recover damages, is, in its nature, quite as transitory as a suit for .divorce, and can be quite as well tried in another county than that in which the statute requires it to be instituted. And yet in Lewis v. Lewis,
Before the code, nothing was better settled than that, in civil cases, advantage could not, after verdict, be taken of the fact that a personal action was brought and tried in a wrong county. Mayor of London v. Cole, 7 T. R. 579. The English statute of jeofails, 16 and 17 Car. 2, chap. 8, was express that the judgment should not for that cause be arrested or reversed, and we had re-enacted substantially the same statute. R. S. 1843, p. 714. Dumont v. Lockwood,
In suits like this, the rule' of the common law, that the venue must be laid in the right county, was quite as imperative as our statute is, that the suit must be commenced in the right county, and I suppose for the same reason, that is to say, that the jury to try the cause may come from that county. There can be no other reason. And since it has come to be believed that a jury having no previous knowledge of the matter in controversy, and which must, therefore, rely wholly upon the evidence, is quite as safe as any other jury, and indeed in all respects to be preferred, the fact that the place of trial is .merely a formal and technical requirement, in its essential nature, must be very apparent indeed. It was so regarded by Marshall, J., in Livingston v. Jefferson,
In my judgment the twenty-eighth section of the code
The power to hear and determine a cause is jurisdiction in a legal sense, and it is to my mind very clear that this power, as to a given cause, may be conferred by law upon any circuit court in the State; and yet, at the same time, without inconsistency, it may be required that suits shall be brought only in the county where the subject of the action is situate, or where the cause of action arose, or where the defendant resides; and that the effect of this requirement Is, not to deny jurisdiction of the subject to the court of any • county, but merely to fix the proper venue.
Jurisdiction of the parties and of the subject must coexist, in order to enable any court 'to render a judgment which is not utterly void. The parties may voluntarily submit themselves to a jurisdiction—appearance and a failure to question the right of the court ’ to bind them waives the objection as to the parties—but as to the subject, it is never toolate, even after judgment, to urge it. I understand the fifty-fourth section of the code merely to be in harmony with'this doctrine. In that sense, it is wise in its provision that, the objection that the court has no jurisdiction of the subject shall not be waived by a failure to- make it by demurrer or answer. Before that section was amended, in 1855, the objection, that no case was made by the complaint, was waived, unless it was raised by demurrer, for, of course, it could not be by answer, but would always appear, like the want of jurisdiction of the subject, upon the face of the complaint, and it would be senseless to attempt to show it by answer. It is beyond my power of belief that it was ever intended that a failure to object should cure a complaint which failed to show any cause of action, and yet not waive the objection that a meritorious suit was brought in a wrong county. I can readily see, however, that facts not averred, which would make a good case, might be proved upon a trial, and that legislation pre-eminently intended to make traps and pitfalls of no avail in the conduct of a cause, could, assurpe, after verdict, that a good case must have been proved,, else the plaintiff would not have succeeded.
It is by inference only, as it seems to me, that the cases referred to, with perhaps a single exception, can be made to ¡support the motion in arrest. This inference is deduced ■from language employed by the judges, where, I think, words were not well chosen, or not used with exactly legal accuracy, as they would have been if the very question had been in hand. There is a well recognized distinction between jurisdiction over the subject of the action and jurisdiction over the particular cause. The latter may not exist, though the former does, in a given instance. In short, as has been already intimated, the law may require the particular cause to be commenced in a certain county or court, not because the courts elsewhere have no jurisdiction of the subject, but because the legislature is of opinion that it will be more convenient or less expensive to try it in the county or court chosen. Prigg v. Adams, 2 Salk. 674, is a case where the decision rested upon this distinction. There the judgment (for five shillings) of a court having general jurisdiction of the subject was held valid, the cause arising in Bristol, though the statute required all such causes arising in Bristol under forty shillings to be brought in an inferior court, declaring that the judgment of any other court should be void. The judgment was erroneous, of course, .but.it would have been void if the effect of the statute had
I admit that it would logically follow, from the views already expressed, that the objection could not be raised by demurrer, and that this is not in harmony with Parker v. McAllister,
. 'The subject of the action may determine its proper venue without resulting in a denial of the general power of any court elsewhere to try the cause, if objections be not made, as 1 think has been already shown; and if this be true, it seems clearly to follow that no argument against the construction which I put upon the fifty-fourth section of the code can be founded upon a comparison of the language' of that section with that which is employed in the twenty-eighth section.
Notes
Opinions filed January 2d, 1871; petition for a rehearing overruled February 2d, 1872.