Joint County Park Bd. v. Stegemoller , 228 Ind. 103 ( 1949 )

ON PETITION FOR REHEARING Appellees in their petition for rehearing assert that by the language of the original opinion to the effect that the sixth objection pleaded matters in abatement which were waived by being joined with other objections which, if anything, were answers in bar, there was added "something new" to the law in eminent domain cases, and that by implication, for the first time, the cases ofMorrison v. Indianapolis Western R. Co. (1906),166 Ind. 511, 76 N.E. 961, 77 N.E. 744, and Vandalia Coal Co. v.Indianapolis Louisville Rwy. Co. (1907), 168 Ind. 144, 79 N.E. 1082, were overruled.

It is obvious that the full effect of the later decisions ofSisters of Providence v. Lower Vein Coal Co. (1926),198 Ind. 645, 154 N.E. 659; Dyar v. Albright Cemetery Assn. (1927),199 Ind. 431, 157 N.E. 545; and Reuter v. Milan Water Co. (1935), 209 Ind. 240, 198 N.E. 442, has not been fully considered by the appellees.

In the Sisters of Providence Case, supra, a certificate of the lateral railroad required by § 55-2607, Burns' 1933; Acts of 1869 (Spec. Sess.), ch. 46, § 6, p. 97 (§ 13224, Burns' 18. 1926), was not filed in the recorder's office until several months after the action for condemnation was commenced and jurisdiction obtained of the appellants. The court in holding that this matter was one in abatement which should have been raised before an objection in bar said:

". . . The statute which provides for filing such a certificate does not command that it shall be filed before the action to appropriate lands for a right of way is commenced. If it could be construed to require such prior filing, we think the fact that a certificate had not been filed in time would be a matter in abatement, to be pleaded under oath before joining issue in bar. The mere unsworn allegation in one paragraph of a series of exceptions in bar, filed at the same time, that such a certificate had not been filed before the suit was commenced, did not state a cause of defense. See Southern Ind. R. Co. v. Indianapolis, etc., R. Co. (1907), 168 Ind. 360, 372, 81 N.E. 65; Cleveland, etc., R. Co. v. Hadley (1913), 179 Ind. 429, 438, 101 N.E. 473." (Italics added.) pp. 657, 658.

A matter in abatement would be properly designated as an "objection," yet its nature is not changed by its name, and this court should consider it for what it is in fact and law.

This court in considering a waiver of jurisdiction of the person in an eminent domain proceeding in the Dyar Case, supra, said:

". . . The provision of § 7683 Burns' 1926, § 4, ch. 48, Acts of 1905 [§ 3-1704, Burns' 1946 Replacement], that the clerk shall send a notice by mail to each nonresident landowner was not complied with, but since both appellants (defendants) appeared generally and submitted to the jurisdiction of the court, any insufficiency of notice or objection to the jurisdiction of the court was thereby waived. Slauter v. Hollowell (1883), 90 Ind. 286." pp. 434, 435.

In the Reuter Case, supra, the court, in holding that a general appearance under the eminent domain act waives any irregularity in the service of process, said:

". . . The record discloses that appellants appeared to the action and filed their objections, which are directed to the complaint and serve the purpose of a demurrer, an answer, or both. There was no motion to quash the service and no special appearance. The sufficiency of the process cannot be questioned by demurrer, and a general appearance waives any irregularity in service." p. 243.

However, upon further consideration of the statutory provisions contained in § 3-1705, Burns' 1946 Replacement (Acts of 1905, ch. 48, § 5, p. 59) the majority of the court is of the opinion 19. that, since the proceedings are somewhat summary in nature, and the statute requires, "Such objections shall be in writing, separately stated and numbered, and shall be filed not later than the first appearance of such defendant; and no pleadings other than the complaint and such statement or objections shall be allowed in such cause, . . ." matters affecting the jurisdiction of the person and in abatement may be presented by unverified objection filed at the same time as other objections, which may severally constitute a demurrer or answer. Accordingly, the Sisters of Providence Case, supra, the DyarCase, supra, and the Reuter Case, supra, in so far as they are in conflict with this opinion, are hereby overruled.

The other points presented in the petition for rehearing were duly considered in the original opinion, and upon further consideration, we believe were correctly decided. If a 20. petition for rehearing presents only points that were properly presented for decision at the first hearing and were not overlooked or improperly decided, the petition should be denied. Kilgallen v. State (1922), 192 Ind. 531, 132 N.E. 682, 137 N.E. 178. See also Glens Falls Ins. Co. v. Michael (1907), 167 Ind. 659, 74 N.E. 964, 79 N.E. 905, 8 L.R.A. (N.S.) 708.

Rehearing denied.

NOTE. — Petition for Rehearing reported in 89 N.E.2d 720.