8 Ind. 320 | Ind. | 1856
Tbis was a proceeding by writ of mandate against tbe Whitewater Valley Canal Company,, who were tbe defendants below. Tbe affidavit upon wbicb tbe writ is predicated, is in substance as follows: When tbe State constructed said canal, there was, and at all times since bas been, a public bigbway of tbe State, leading from tbe town .of Harrison, in Dearborn county,
Against the correctness of this decision two positions are assumed.
1. The motion, if at all valid, should have been made before appearing to the action, or by way of plea in abatement.
We have a statute which enacts that any action against a corporation may be brought in the county where the corporation has an office for the transaction of business, or any person resides upon whom process may be served against the corporation, unless-otherwise provided, &c. 2 R. S. p. 222, s. 796. As the plaintiff failed in the Court below to state the grounds upon which he resisted the defendant’s motion, and the record being otherwise silent on the subject, we must presume that there were before the Court facts sufficient to justify its action under the section to which we have referred.
A defect of jurisdiction is not waived by the defendant’s appearance to the action. Whenever in the progress of a cause such defect appears, the suit should be dismissed. Yan Santvoord’s PI. 725. But it is assumed that the present action is local in its nature, and must be brought in the county where the duty sought to be enforced is to be performed. The code points out and defines the subject-matter of all the actions which must be instituted in the county in which the subject of the action, or some part thereof, is situated. But the case at bar does not seem to be within the definition. 2 B. S. pp. 33, 34, ss. 28, 29. We are, however, referred to an act of 1852, which, it is said, expressly requires actions such as this to be commenced in the county where the duty sought to be enforced is to be performed. That act provides that, “ Whenever, by virtue of any law of this State, it shall be the duty of any canal company to rebuild or repair any bridge across the canal of such company, and they fail to perform that duty, the board of commissioners of the county where the bridge should have been rebuilt, &c., may bring suit in their own names against such company,” &c. It further provides, 'that the proceeds of any judgment that maybe obtained against such company for so failing, &c., shall be applied
These provisions evidently do not apply to the question under discussion. The writ of mandate does n'ot assume that the bridge constructed by the State crossed the canal. Nor is this suit'in the name of the board of commissioners. And, moreover, that branch of the act which relates to the application of the proceeds of a recovery against the company, at once shows that the proceeding by mandate is not contemplated; because in such proceeding a judgment for damages is not allowed. For aught that appears in the record, the ruling of the Court is not erroneous.
The judgment is affirmed with costs.