73 Ind. App. 226 | Ind. Ct. App. | 1919
This is an action commenced by appellee against appellants in the Cass Circuit Court. The complaint on which the cause was tried is in a single paragraph, and alleges in substance, among other things, that, appellee is a corporation, engaged in the business of insurance, and is duly authorized to conduct, and is conducting, a fire insurance business in the State of Indiana; that appellant company is a corporation, and on December 31, 1912, owned and was operating a railroad through the counties of Cass and Pulaski in said state; that on May 11, 1911, appellee, for a valuable consideration, entered into a contract of insurance with appellant Van Gundy, and issued him a policy evidencing such .contract, by the terms of which appellee insured said Van Gundy for three years from that date against loss by fire on a certain dwelling house owned by him in the town of Thornhope in Pulaski county, agreeing to pay him the sum of $200 in case said house should be lost or destroyed by fire, and that' said contract was in force and binding on appellee on December 31, 1912; that said dwelling, on the date last named, was totally destroyed by fire, and the liability of appellee to pay said sum of $200 was thereby fixed, which sum was less than the value of the building so destroyed; that thereafter, on January 7, 1913, appellee paid said sum to said Van Gundy, as it was obligated to do by the terms of said contract of insurance; that said dwelling house was located about forty-six feet east of the railroad track of appellant company in said town of Thornhope; that ,on December 31, 1912, said appellant owned and operated a locomotive engine on its said track through said town,
Appellant Van Gundy was defaulted. Appellant company, which will hereinafter be designated as appellant, filed demurrers to the complaint, alleging that there was a defect of parties defendant; that appellee had no legal capacity to sue, and that the complaint did not state facts sufficient to constitute a cause of action. These demurrers were overruled, and appellant then filed a verified answer in general denial. The cause was submitted to a jury for trial, resulting in a verdict and judgment against appellant in the sum of $192. The jury also returned their answers to certain interrogatories submitted by .the court. Appellant filed its motion for a new trial, which- was overruled, and on the same date filed its motion in arrest of judgment, which was likewise overruled. It now prosecutes this appeal, and has assigned errors, which require a consideration of the questions hereinafter determined.
Said §348 reads as follows: “Where any of the matters enumerated in section 85 do not appear upon the face of the complaint, the objection (except for the misjoinder of causes), may be taken by answer. If no such'
Appellant contends that if the legislature had intended by its amendment of said §348, in 1881, to vest circuit courts with jurisdiction of all subject-matter, unless such question is raised by demurrer or answer, it would have eliminated the exception contained therein, instead of adding the proviso thereto. We may well agree with this contention, but it is obvious that the legislature did not. have the intention stated, as manifested by the limitation contained in such proviso. It is obvious that matters of jurisdiction not merely involving the county in which the action is brought are in no. way affected by such proviso.
Again, it is contended that the effect of the conclusion we have announced is to destroy that part of §309, quoted above, relating to real property, and render the exception contained in §348, supra, meaningless. ' It is
Appellant has cited a number of decisions of this state, rendered subsequently to 1881, involving actions based on injuries to real estate and others arising from the killing of stock by railroad companies, in which it is held that the proper court in which such actions should be brought is the circuit court of the county in which such real estate is situated, or in which such stock was killed. We do not question these decisions, as it must be apparent that such courts are the only courts where a plaintiff may bring his action and insist on its hearing and determination as a matter of right in all events. If such an action is brought in some other county from that indicated above, the right of such court to assume jurisdiction of the subject-matter would depend upon the defendant’s failure to take advantage of that fact by demurrer or answer, as stated in the proviso contained in said §348.
Appellant also contends that the paragraph of com
We find no error on which to base a reversal of the judgment in this cause and it is therefore affirmed.