46 Ind. App. 634 | Ind. Ct. App. | 1910
Appellees, Cora Golding and her husband, brought this action against appellant for damages for a personal injury suffered by said Cora Golding on December 30, 1902, caused by a fall upon a defective sidewalk- in the town of Knox, Indiana. -
A complaint was filed in the Starke Circuit Court on September 30, 1904, which is not in the record. On October 28, 1904, a summons was issued by the clerk of that court to the sheriff of Starke county, commanding him to summon the town of Knox to appear on November 9, 1904, and answer the complaint of appellees. This summons was returned by the sheriff indorsed: “Served as commanded, by reading to and within the hearing of the within-named defendant, town of Knox (George Brown, Frank Brown and-Booth),” etc., October 29, 1904. On November 19, 1904, the Starke Circuit Court, upon motion of appellees, changed the venue of the cause to the Pulaski Circuit Court. In the latter court on November 22, 1904 appellant appeared specially, and moved to quash said summons and to set aside the service thereof, which motion the court sustained. On November 23, 1904 a summons was issued in said cause by the clerk of the Pulaski circuit court to the sheriff of Starke county, Indiana, commanding him to summon “the marshal of the town of Knox” to appear in the Pulaski Circuit Court on December 7, 1904, to answer the complaint of appellees. The return of the sheriff of Starke county upon this summons showed that it came to hand on November 25, 1904, and was served on November 26, 1904, upon “George Robbins, marshal of the town of Knox.” February 20, 1905, appellant appeared specially in the Pulaski Circuit Court, and moved to quash the summons and set aside the service thereof. Thereupon, on motion of appellees, the venue was changed from the judge, and a prac
Appellant’s assignments of error will be examined in their order.
It is contended that, as appellant was a municipal corporation of Starke county, the action could not be commenced in Pulaski county, and therefore' summons could not properly be issued by the clerk of the Pulaski circuit court. It is sufficient to say, that it appears from the record of this cause in the Pulaski Circuit Court that it was not brought in that court, but had been duly commenced by filing a complaint and issuing a summons thereon in the county of which appellant was a resident corporation; that it was pending in the Pulaski Circuit Court upon change of venue, notwithstanding the fact that that court had quashed the original summons and set aside the service thereof. It was,' therefore, not improper to issue alias process for. the appearance of defendant in the court in which the case was rightly pending. Niagara Oil Co. v. Jackson ( ), (Ind. App.), 91 N. E. 825.
As to the third assignment, which attacks two separate rulings, and to the fourth, it is sufficient to say that errors of the court in refusing a change of venue, or a change from the judge, are grounds for a new trial, and cannot be assigned independently in this court. Scanlin v. Stewart (1894), 138 Ind. 574; Goodrich v. Stangland (1900), 155 Ind. 279; Shoemaker v. Smith (1881), 74 Ind. 71.
In support of its objection to the complaint, appellant refers to the statute of March 9, 1907 (Acts 1907 p. 249, §8962 Burns 1908), which provides that no action in damages for injuries to person or property, resulting from any defect in the condition of any street, alley, highway or bridge, shall be maintained against any city or town of this State, unless written notice of specified matters shall, within sixty days after the injury, or if such defect consists of ice or snow, or both, within thirty days after the injury, be given to a specified officer of such city or town.
The injury in this ease occurred December 30, 1902, and this action was commenced September 30, 1904. This statute could not be given a retroactive effect, impairing the preexisting right of appellees under their pending suit. See Niklaus v. Conkling (1889), 118 Ind. 289; Goodbub v. Estate of Hornung (1891), 127 Ind. 181; Barnett v. Vanmeter (1893), 7 Ind. App. 45.
It is contended that this paragraph shows that the action was not commenced within two years after the occurrence of the injury. This paragraph, besides other matters, recited that the summons was issued by the clerk of the Pulaski circuit court, and directed to the sheriff of Starke county, commanding him to summon the marshal of the town of Knox, and that the return of the sheriff showed service upon George Bobbins, marshal of the town of Knox. It is not questioned that the service was had upon the proper officer, under the statute, but it is contended that the summons was invalid, because the sheriff was not commanded to summon the town of Knox. The statute (§321 Burns 1908, §317 B. S. 1881) provides that “no summons, or the service thereof, shall be set aside, or be adjudged insufficient, where there is sufficient substance about either to inform the party on whom it may be served, that there is an action instituted against him in court, the name of the plaintiff and the court, and the time when he is required to appear.”
In a suit against a school township (Cicero School Tp. v. Chicago Nat. Bank [1891], 127 Ind. 79), to set aside a judgment by default, the summons commanded service on the trustee of the school township, and it was served upon the trustee. It was held that the summons was sufficient to inform the trustee that an action had been instituted against him in court, not personally, but in his representative capacity, and that plaintiff 'was asserting a claim against the township of which he was a trustee, the case being distinguished from the case of Vogel v. Brown Tp. (1887), 112 Ind. 299, 2 Am. St. 187, where the summons was issued against “Valentine Strange, trustee of Brown civil township, Martin county, Indiana.”
This paragraph was a plea to the jurisdiction of the court below, because appellant was a resident of Starke county, and the Pulaski Circuit Court did not, it was claimed, acquire jurisdiction, etc. The paragraph in question was pleaded with other paragraphs in bar, which is forbidden by the statute (§371 Burns 1908, §365 R. S. 1881). The plea might have been struck out on motion, but the equivalent result might be and was obtained by sustaining the demurrer. Alexander v. Collins (1891), 2 Ind. App. 176; Voluntary Relief Department v. Spencer (1897), 17 Ind. App. 123; Dwiggins v. Clark (1884), 94 Ind. 49, 48 Am. Rep. 140.
It has been sufficiently indicated that there was no error in overruling appellant’s motion in arrest of judgment, made the basis of the tenth and last assignment presented.
Judgment affirmed.
Mandate Modified.