Matlaw Corp. v. War Damage Corp.

Damage Corporation Corporation Matlaw War 18,315. May 8, Rehearing Filed 1953. Petition for [No. dismissed June 1953.] Jay Darlington, E. of Hammond and Myers, Walter Indianapolis, appellant. Jr. for Baldridge,

Holmes Assistant Attorney General of the United States and Marshall E. Hanley, United States Attorney for the Southern District Indiana, appellee. J. The complaint filed a

Crumpacker, Superior the Marion making Court War Damage Corporation, subsidiary wholly of and owned

by Corporation, the Reconstruction Finance the sole party separate four defendant. A series of summonses complaint were each issued on this and was returned to concerning the court in due course with the facts service County endorsed thereon sheriff of Marion through duly appointed, qualified acting deputy. his April appellant appeared Thereafter on court, following said moved for and obtained the order: being duly “And the Court advised premises now orders the clerk to issue alias sum- against Damage Corporation, mons fendant the War the de- herein, upon fiduciary to be served its Mutual agents, Insurance surance the Grain Dealers National Fire Company, and the In- Connecticut Fire Company, which said summons shall be day April, returnable on the 14th 1949.” day compliance On the same and in with said order an alias summons issued sheriff of Marion County commanding him to summon the appear April 14, 1949, by in said court on service agents” “fiduciary its Connecticut Fire Insurance Com- pany and Grain Dealers National Mutual Fire Insurance Company. reciting The sheriff made return thereon showing 2-1905, facts service as directed. Sec. Burns’ Replacement, say concerning has this to alias summonses: .; if, any . filing “. at time after the of the complaint it any party shall be to the found properly action has not been may a written notified, plaintiff complaint,. with clerk file or indorse on the request given, for such notice to be session'by obtaining

while the court is in an order given, naming that such notice day. therein the party required on action, appear which such to the publication and summons shall be issued or accordingly, proper case, pro- made in the as above ; vided . . . .” April that on the court ordered the fact From summons, we must assume that it found that an alias by properly had the “not been notified” previous any and of summonses the service finding, wrong, urged right Such thereof. give by and we the court therefore previous summonses and returns thereon no said further consideration. evidently concluding appellee, that the court had yet jurisdiction acquired person, appeared

not over its April 10, specially April 24, 1948, and and on on quash filed almost identical motions all summonses theretofore issued and set aside service thereof filed, dates, pleas also said similar in abatement accompanied by each of which was an unattached and support unverified instrument entitled “Memorandum in plea quash of in abatement and motion to summonses Why April and set aside service thereof.” set pleadings apparent were these filed is not from the although day record filed memorandum on that al- leges additional appearing not some matters prior pleas memorandum. Each of these in abatement quash and each of said motions to were attacked separate demurrers for insufficient facts. strange practice is

This to us and we know no provision permits of our code that separate two pleas

distinct in abatement to be addressed simul- taneously complaint separate to the same or two quash distinct motions to the same summons. Neither can a demurrer be directed to a It motion. has practice been- held such “wholly without war system rant in our jurisprudence.” Bonfoy v. Goar (1895), 56; 140 Ind. Sidener, N. E. Adminis Coons, trator (1892), Administrator 83 Ind. 183. Nevertheless the court saw fit to entertain both motions

598 pleas quash, in abatement and the four de- both being duly advised, and, after overruled thereto murrers appellant demurrers and ordered the all said respond pleas in abatement to both both answer and. appellant quash. This the refused to do but motions contrary elected to stand on its demurrers the on judgment thereupon court entered that action quashed that all summonses be service abate judgment aside. From this thereof be set ruling challenging appeals the court’s on its said de- murrers. contemplates practice quash that a motion to a

Our challenges any appears or return defect that summons the summons on the face of or return and should clearly complained indicate defects of. Flana- gan, Pleading 148, Indiana and Procedure §88; Donnelley (1944), App. 468, 114 Ind. v. Thorne 873; Jeffersonville, Indianapolis Madison & N. E. Rail Dunlap (1868), Company v. 29 Ind. 426. road Defects - appear on the face of the which do not summons or plea in are abatement return reached in which constituting alleged. such defects must the facts Flanagan, Pleading Indiana and Procedure §88; Thorne, supra; Donnelley Workingmen’s etc., Mut. (1909), App. Assn. 43 Ind. v. Swanson N. E. The chose not to follow this orthodox quash, practice. first motion to Its which seems to be all summonses theretofore directed to issued and the thereon, nothing legal contains but the returns mere conclusion that “no effective service has been obtained utterly defects, defendant.” It fails to on said set out appearing returns, of said face summonses or challenge. quash it seeks to second motion to specifically to the alias directed summons and contains nothing than a that more statement the service of said the defendant not constitute service on summons “does Damage Corporation any nor has other effective War Again there been had said defendant.” service defects, appearing on to what are the no indication as return, to which the face summons objects. support The memorandum of these motions they concern themselves with are of no assistance as pleaded have been in abatement. matters should Notwithstanding all difficult to under- this for us predicated upon overruling can stand how error the demurrers to the As two motions. stated proper demurrers to such motions not above were in the first instance and should have been stricken They from the files. were allowed to stand and were which, perhaps, accomplished pur- overruled the same quash pose. undisposed and, This left the motions to they point appear out as no defects that on the face they of the summonses returns to which were directed, they should have been overruled. pleas now come to a

We consideration of the two in abatement and the demurrers thereto. As heretofore

stated, if the is in court it is virtue of the alias summons and the service thereof. All others went out of the record when the court ground found them insufficient and on that ordered the issuance of the alias summons. opinion It is our that authority practice there is no in our separate for two pleas, and distinct simultaneously file, to abate the same action for same reasons. The last the. one filed amendatory was not offered as of the first nor does it comply requisites supplemental with the of a pleading. We are constrained to hold that when it was filed it became a substitute plea for the first and that its effect was to withdraw the same. Our discussion will there- plea fore be confined to the in abatement and the memo- thereof, they April as support filed randum Omitting and its pertain service. alias summons oath, plea signature reads caption, said follows: as Caughran, B. United “Comes now Howard States by special appearance Attorney, War this action abate as the defendant Damage Corporation, and that asks the Court the follow- defendant for said following grounds: ing reasons acquired jurisdiction over not Court has “This the-War-Damage Corporation this as defendant legal valid, proper, no service has cause since been made on said defendant.” plea mention It will be noted makes no accompanied it nor unattached memorandum part byit make the same a there- does reference as the record discloses memoran- of. As far simultaneously merely filed with the dum was plea and offered as an unsworn statement in abatement which, itself, alleged plea support of such of fact in controversy tending the action/ As no facts abate waged or not such memorandum is a over whether plea out as follows: part in abatement we set of the support of Abatement and Plea in Motion “In Quash Summonses and Set Aside Service of to simultaneously Process, are filed both of which by way supplement herewith, the of Memo- and pleadings support filed of similar randum filed undersigned by special appearance for the by the Damage Corporation April 10,' on defendant War undersigned respectfully would state to attempt acquire jurisdiction the Court by serving Damage Corporation E. H. the War over agent Richardson, of Fire In- as state Connecticut Earl, serving Company N. and Otis vice surance secretary Dealers National president and of Grain Company, is Insurance not Fire effective Mutual brought the War Dam- not said defendant has and jurisdiction age Corporation under of this Court in this cause. a defendant as “Although ‘fiduciary agents’ as described neither Company Fire Connecticut Insurance nor the Grain Dealers National Mutual Fire Insurance Company any authority accept had service of process for the defendant at the of time said at- tempted service. Damage Corporation “The defendant War is a foreign corporation, and pur- at time said ported service it jurisdiction of this ‘not found’ in the territorial Court. defendant is not doing business, any had nor it at since Febru- time ary 9, 1948, any County, done business in Marion Indiana, Moreover, or in the State of Indiana. during period, undersigned the same as the re- liably believes, informed and therefor the defend- corporation February 9, ant owned since 1948 has not possessed, possess, nor does now own or any property Indiana, County, in Marion or the State of Indiana. “Neither was the Connecticut Fire Insurance

Company nor the Grain Dealers National Mutual general Company any Fire Insurance at time agent statutory agent aor authorized to receive process a purpose only for corporation the defendant but was agent special special purpose, special for a special agency totally and ceased and terminated as to the Connecticut Fire Insurance February 9, Company on and as to Grain Company National Mutual Dealers on Fire Insurance or about December said since re- spective dates said Connecticut Fire Insurance Company and said Grain Dealers National Mutual Company agents Fire Insurance not have been corporation any respect. the defendant fore at the time of the There- attempted purported process service in this on case the Connecticut Company Fire Insurance and the Grain Dealers Company, National Mutual Fire Insurance said cor- porations agents corpo- were not defendant any whatsoever, ration of kind and therefore the attempt by serving to serve the defendant summons Company Connecticut said Fire Insurance on said Grain Dealers National Mutual Fire Insur- through Company respective ance their officers was 602 acquire jurisdiction

wholly over the ineffective to Damage Corporation. defendant War undersigned respectfully “Wherefore, sub- abate as to the defend- that this action should mits Damage Corporation.” ant War plea in abate- appellant’s to the above demurrer The appears (1) facts because for insufficient ment taken that the defendant has the record from papers the case pleadings and steps filed general appearance under a constitutes (2) plea practice; because the law and Indiana showing any proper in fact or sufficient to make fails plea requirements in abate of a to meet law jursidiction attacking over the defend the court’s ment us that unless the memorandum ant. It seems clear to plea support appellee’s in abatement is con appellant’s part demurrer should a thereof sidered specification. The on its second have been sustained only urged for the abatement of the action is to reason acquired jurisdiction that the court has not the effect proper, person of the defendant because no over the plea legal on it. This was valid or service has been had showing record an alias summons filed in the face of a reciting a thereon to the return directed appellee’s manner in which it served. The proper, of such service as not valid or characterization legal plea pure as the contains is a conclusion of law and nothing considered insufficient else must be abate v. Dodgem Corp. Murphy Shows, the action. D. D. Inc. 699; App. 325, Levy (1933), Ind. 183 E. State N. 873; App. 666, Kemp (1928), E. ex rel. 86 Ind. 152 N. v. Ricketts (1921), App. ton Hotel 76 Ind. Co. E. N. the memorandum insists however plea part set out must be considered

above as and, taken, ample pleaded to facts when so are jurisdiction action lack over the for of abate person. that when are inclined to believe its We it demurrer also considered the the filed its plea part the abatement. A memorandum to be a of in goes only appearing defects on the face demurrer to plea certainly, and unless the memorandum is of the it, showing general brought appear- into no facts a alleged appear ance would on its face as in the first specification appellee demurrer. The of said states that adopted practice a it the which obtains when demurrer ground pleading that it is filed on the to which for want In addressed is insufficient of facts. such merely general event the demurrer states the or con- ground demurrer, to-wit, clusory pleading is in- for facts, necessary for want of and the aver- sufficient specifying the are contained in. ments defects an accompanying per- memorandum. cannot however We approval of counsel to lead us mit the attitude into the logical procedure, may seem, of a however it that by by Supreme not sanctioned the code or of the rule can and as far as we discover there is no Court war- practice pleading in for rant Indiana matters abatement the manner of a demurrer for want of judicial precedent practice facts nor is there for such opinion It in our decisions. is our that the memorandum controversy plea cannot be read into the in abate- supply concerning plea ment and thus facts which the is deficient. appellee says notwithstanding that all that has judicial notice

been said “matters is taken pleading.” need not be stated in a 2-1046 Sec. Replacement. Burns’ 1946 That the Acts of Congress are of all the the laws states we knowledge judicial by of them. That therefore have ,604 Congress appellee’s part charter made a

act of regulations permanent’federal (7 Register Fed. of the expired January 2531) and therefore we that know (cid:127)22, appellee and that had no succession except purposes liquidation. thereafter That on 30, 1947, Congress June withdrew the Reconstruction Corporation’s authority Finance to advance more July 30, 1947, funds to directed pay Treasury of the United States $210,751,618.65 through the amount realized operations applied that its such sum should the reduction of the national debt. We concede required judicial facts, are to take notice of these .we State, Schumacher, rel. The ex Auditor v. Gramel spacher (1891), 398, 81, 126 Ind. E.N. but even plea we read them into the in when abatement we they possibility to see fail how foreclose the of the being process liquidation; still in the appellee still subject purpose also, in to suit furtherance of that end, possibility agent maintaining to of its an Indiana, other than those mentioned in the memor andum, authority accept appear with to service voluntarily. appellant judgment

The insists that in the event reversed cause should be remanded with a mandate appellee plead that the court order the to to the merits because has into court come with a flagrantly plea insufficient in abatement thereby frivolously long delay. caused We do not be question lieve that this is a for us to decide. If and plead over, when seeks to1 the trial court right will decide its to do so.

Judgment is reversed and cause remanded with in- appellee’s quash structions to overrule the motion to appellant’s the alias summons and sustain the demur- further plea abatement and for the second rer to opinion. this consistent with proceedings opinion. J., with Royse, dissents C. OPINION

DISSENTING agree (Dissenting opinion) cannot Royse, C. J. —I majority in case. I- am of the this conclusion with the question agreement general their views on with circumstances, and, other pleas under in abatement However, would be correct. their conclusion believe stated, appeal I believe reasons hereinafter for the the action because dismissed should be moot. commenced is Superior complaint filed in the herein was 10, 30, County June March 1948. On of Marion

Court congress authorizing the a statute Recon- enacted requested by the Corporation, when Finance struction Administrator, approval of the Loan with Federal President, corporation, alia, take to inter to create the Federal Loan action the President and such as necessary expedite may deem Administrator 249). program (55 Pursu- national-defense Stat. authority, grant of the Reconstruction Finance ant Corporation created on December against damage, property defendant’s insure war thepermanent part federal charter was made regulations (Code Regulations, Supp., of Federal Cum. Register ed.) ; also, pp. (1st Federal 3819-20 see 27, 1942, Congress 2531). enacted a On March statute directing Corporation to Reconstruction Finance supply to in an amount continue funds to defendant but 175). 174, (56 not exceed to one billion dollars Stat. 248, June, 250), (55 au-' Both Act of Stat. thorizing appellee’s creation, expressly charter and its

provide (not) beyond it “shall have succession 22, January 1947, except purposes liquidation, for (appellee) beyond . unless . . is extended such date pursuant Congress.” Congress passed to an Act of has extending beyond January no act appellee the life of 22, fact, 30, 1947, Congress repealed 1947. In on June authorizing the Act of March Recon- Corporation supply ap- struction Finance funds to pellee (61 202, 209). Stat.

Finally, 30, Congress July enacted the fol- lowing appellee: law reference to Damage Corporation: “War The Board of Direc- Corporation pay

tors of the to paid shall or cause Treasury $210,751,618.- of the United States Corporation 65 of the amount realized from operations, its such sum to be covered into the Treasury immediately upon approval of this Act .' applied and Stat. to reduction of the national debt.” 61 574,' Appellee in its brief in correctly court asserts judicial knowledge that we must take of these Acts of Congress Regulations. Code of Federal It then they asserts show when (1) this action was commenced appellee doing Indiana, was not (2) business in it owned property here, (3) no completely fact had ceased to exist.

Appellant reply its brief concedes that if against has ceased to exist action it should be dis- its. missed. But contends that the above referred- do statutes show has ceased to exist be- not creating cause the provided statute it and its charter it beyond January 22, shall not have succession except purposes liquidation, unless is extended beyond pursuant Congress. date such : to an Act of In support of this appellee' contention cites the fact that

607 through Attorney District the United States appeared allegedly it after had litigation character of the same reference to that fact was no and there to exist ceased Corporation They v. War are: Matlaw cases. in those 1947), (D. Ind.) (May, D. of Corporation C. S. Damage (Oct. 1947) F. 2d 349; (7th Cir.) 164 281 D. F. R. 7 863; Denied), Knowles U. S. v. War 333 (Certiorari C.) 1948), (C. Fed. Corporation (Oct. A. D. Damage Denied) (1949) 336 S. 914. From (Certiorari 2d 15 U. possible to determine opinions it is not reported apparent It from commenced. were these actions when question under con reading opinions the here these presented the Federal Courts not to sideration appearance of a United I do not believe cases. those Attorney Attorney General of or of the District States agency Federal of a whose on behalf the United States operation recre expired by of law could had existence present agency, the failure to nor could life such ate have effect. question the court such to a such government agency or cor- that a assumed It is to be Congress obey not extend the law. did poration will Therefore-, beyond January life of appellee proceeded on that presumed must Congress liquidate determined its affairs. date repealed after June funds needed no more authorizing Finance the Reconstruction Cor- Act supply was more than six it funds —this poration to liquidation. except ended existence after its months appel- 30, 1947, supra, Congress July By of Act of Treasury the United pay lee was directed particularity The minute $210,751,618.65. States Congress significant. indicates to me that It sum liquidation appellee. completed the by this Act jurisdic- authorities in this It is well settled jurisdiction must give appellate there that to be. tion give controversy parties can to one of the real tangible Flanagan, valuable or relief. some Wiltrout Hamilton, Appellate Practice, Indiana Trial Vol. & C, II, 13-,14, I; H pp. and Subdivisions ex §2129, State Bath, Secretary (1949), rel. Murchie v. State et al. of 481, 680; E. Bell 227 Ind. 86 N. 2d v. Buescher Band . Company (1930), 12, et Instrument al. 202 Ind. 171 N. 377; Bryant Jackson, E. ex rel. v. Secretary State of 497, 51; (1922), Levsey 192 Ind. N. E. State 137 et al. City Evansville, (1951), App. 666, et al. 121 Ind. of v. E. 2d 101 N. opinion appellee

I of am the had ceased to exist as entity long by operation litigation’ an of law before this appeal commenced. Therefore the was should be dis- litigation. put missed and an end to this It does not any necessarily appel- follow that if there be merit in might not, complaint proper action, pursue in lant’s a However, significant logical the fund. and persuasive Damage dicta the case of Knowles War v. Corporation, supra, pp. apparently has ended against of kind actions the Federal Courts. FOR

ON PETITION REHEARING appellee’s petition' for a rehear- Pee Cueiam. The ing appeal day permissible filed on last of this day copy the rules. On same a thereof

under for the to counsel and re- was mailed following day. him the Rule 2-13 ceived provides: filing for motions and the time allowed “Within support thereof, copies shall

petitions, and briefs affected, parties upon or their attor- he served record, proof such service shall be neys of of

609 filing promptly thereafter. the time of at made emphasis).” (Our petitions apply for rehear- held to has been rule This requires dis- comply a therewith ings a failure v. (1951), Norling Bailey petition. missal 457, 513, 2d 439. 2d 99 N. E. App. N. E. Ind. Concerning appellant’s have held that brief we an opposing copy counsel on mailing a thereof compliance filing a with day is not for the same last day by him on the same it was received Rule 2-13 unless v. Wright (1945), App. Hines 116 Ind. it was mailed. 884; (1948), E. Hoover 118 Ind. 2d 62 N. Shaffer No distinction brief App. E. 569. between a N. rehearing as petition a a can be drawn the time for serving copy opposing party either governed by attorney the same rule. his rehearing petition is dismissed. Reported in 112 N. 2d 233. E. Note. — Rehearing 2d 112 N. denied E. Gary

City Russell 18,343. Filed June [No. 1953.]

Case Details

Case Name: Matlaw Corp. v. War Damage Corp.

Court Name: Indiana Court of Appeals

Date Published: Jun 12, 1953

Citation: 112 N.E.2d 233

Docket Number: 18,315

Court Abbreviation: Ind. Ct. App.