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tirely the cause or causes producing such diction of a suit to set aside a judgment recove condition. There was evidence in the record ered therein by fraud. tending to show that the condition of the

3. APPEAL OBJECTIONS TO JURISDICTION

TIME. floor was due to its having been used by ap

Where want of jurisdiction of the subjectpellant before it became hard, and the in- matter is apparent on the face of the proceedstruction was clearly erroneous in ignoring ings or record in a cause, the objection may be

raised for the first time in the Supreme Court that question. Our conclusion is that the

on appeal. ruling of the trial court on instructions was

[Ed. Note. For cases in point, see vol. 2 substantially correct.

Cent. Dig. Appeal and Error, $8 1166-1176.] Many errors are assigned on the admission 4. SAME-INTERMEDIATE APPEAL. and exclusion of evidence; some 18 of which Where a city court had no jurisdiction of are urged in the argument. While the rul

a suit to set aside a judgment for fraud, the

superior court could not obtain jurisdiction of ings were not, perhaps, in strict conformity

such suit by appeal. with the rules of evidence, we are unable to

[Ed. Note.-For cases_in point, see vol. 2, see wherein the appellant has been sub- Cent. Dig. Appeal and Error, $ 81.] stantially injured thereby. Complaint is

Appeal from Superior Court, Lake County; further made of the refusal of the court,

H. B. Tuthill, Judge. after the suit had been dismissed as to A.

Action by Phillip Steinmetz, Jr., a minor, Bauer & Co., to permit the filing of pleas of

by his next friend, against the G. H. Hamthe five-year statute of limitations, both as

mond Company. From a judgment disto the plaintiffs themselves and the receiver.

missing the complaint, plaintiff appeals. It does not satisfactorily appear from the

Case transferred from Appellate Court under record that the latter was made a party

Burns' Ann, St. 1901, § 1337). Cause replaintiff. An offer to do so was made, but

manded the judgment rendered indicates that it was in favor of the original plaintiffs themselves, L. L. Bomberger, for appellant Jno. B.

. and not in favor of the receiver. But how- Peterson, for appellee. ever this may be, we have already said the contract consisted of written propositions, JORDAN, C. J. This action was comwhich were accepted by the defendants, thus menced on June 2, 1903, by appellant, a constituting an agreement in writing, and minor, by his next friend, in the city court therefore the right of recovery was not bar

of the city of Hammond, Lake county, Ind. red by the five-year statute of limitations. to have a certain judgment rendered in said It was not error to refuse the pleas to be court declared void, vacated, and set aside filed.

on the ground of fraud perpetrated by apThe issues in this case are few and simple. pellee in securing the rendition thereof. The Many of the numerous errors assigned and following are some of the material facts disurged in the argument are unimportant, as closed by the amended complaint filed in the affecting the substantial merits of the case. proceedings: On November 12, 1902, appel. We are of the opinion that there was no sub- lant, Phillip Steinmetz, a minor in the emstantial error committed by the trial court ploy of appellee company, was injured and that the Appellate Court did not err in through its alleged negligence while at work affirming its judgment.

in its packing house at the city of HamThe judgment of the Appellate Court will mond, Ind., on account of which injuries his accordingly be affirmed.

left arm was required to be amputated near Judgment affirmed.

the shoulder, etc. On November 15, 1902, the father of appellant, Phillip Steinmetz, as

his next friend, instituted in the city court of (167 Ind. 153)

Hammond against appellee, in the name of STEINMETZ v. G. H. HAMMOND CO. (No. appellant, an action for damages arising out 20,837.)

of said injuries. The city of Hammond is

incorporated under the general laws of this (Supreme Court of Indiana. Oct. 2, 1906.)

state pertaining to the incorporation of 1. JUDGMENT-FRAUD--VACATION. A court of superior general jurisdiction

cities. The damages sought to be recovered may set aside and annul a judgment obtained in the action were laid at $500, the limit of by fraud.

the jurisdiction of said court under the laws [Ed. Note.For cases in point, see vol. 30, of this state in an action for the recovery Cent. Dig. Judgment, $$ 836–840.]

of money. It is shown that the defendant 2. COURTS-CITY COURTS-JURISDICTION.

(appellee herein) by its attorneys appeared Burns' Ann. St. 1901, $ 3669, provides that a city court shall have original and concurrent

to said action without any service of process. jurisdiction with justices of the peace and A jury was demanded and impaneled, and it city mayors in all matters, criminal and civil, returned a verdict in favor of the plaintiff of which justices of the peace or mayors have or may hereafter have jurisdiction. By sec

for $500. It is charged that this verdict tion 3497 a mayor is given civil jurisdiction was not returned upon any evidence given within the limits of the city concurrent with in the case, but was returned solely upon the jurisdiction and powers of justices of the

statements made to the jurors that $500 was peace, whose jurisdiction, specified by section 1500,' excludes jurisdiction to grant equitable the amount agreed upon by the parties. A rcliet. Held, that a city court had no juris- motion for a new trial was made by the

defendant company, which was overruled, and judgment was thereupon rendered on the verdict of the jury. This judgment was immediately paid by the defendant company to appellant's father, who accepted same in full satisfaction of the said judgment.

The complaint contains many allegations of fraud and fraudulent representations made by appellee company herein and its agents to induce appellant's father to commence said action as his next friend. It is shown, among other things, that the action was instituted by attorneys who were in the employ of the appellee at the time, and were not attorneys of the plaintiff, and did not in good faith represent him; that these agents and attorneys informed the judge of said city court “that a bona fide compromise and settlement of plaintiff's claim has been agreed upon, and upon said representations made to him the judge of said court thereupon entertained jurisdiction of said cause, but only in a formal manner; that plaintiff's father was not, and never has been, the legal guardian of plaintiff, and had no authority to compromise or adjust any claims which the plantiff had against defendant on account of said injuries, and the question of the sufficiency of said settlement and compromise was not presented to said court, and was effected wholly without the knowledge and consent of plaintiff.” At the time the action was commenced and judgment was rendered appellant was confined by reason of his injuries in the hospital, suffering therefrom, and had no knowledge that said action had been instituted and a judgment rendered therein. As soon as he was informed of that fact, he expressed his disapproval of said proceeding. It is further charged that the sum of $500 was an amount grossly inadequate and insufficient to compensate the plaintiff for his injuries, etc. The pleading closes with the prayer that said judgment, rendered on November 15, 1902, as aforesaid disclosed, be declared void, vacated, and set aside, and for all other and proper relief. The city court of Hammond entertained jurisdiction in this action, and ripon the trial rendered a judgment therein against appellant, and from this judgment he appealed to the Lake superior court, wherein there was a demurrer to the complaint overruled, and an answer in several paragraphs filed by defendant, and the demurrer thereto overruled, and on the issues joined there was a trial by court, and a judgment rendered against appellant, from which this appeal is prosecuted.

At the very threshold we are met with the contention of appellee's counsel that the city court of Hammond had no jurisdiction over the subject-matter of this action, and hence this appeal cannot be considered or maintained. It is settled beyond successful controversy that, if the city court in which this suit was commenced had no jurisdiction of the subject-matter, then under the circum

stances the Lake superior court acquired no jurisdiction of the subject-matter by appeal. Jolly v. Ghering, 40 Ind. 139; Mays v. Dooley, 59 Ind. 287, and cases there cited; Horton v. Sawyer, 59 Ind. 587; Brown v. Goble, 97 Ind, 86; Myers v. Gibson, 152 Ind. 500, 53 N. E. 646. In this state the courts of justices of the peace and city courts, like that in which this action was instituted, are of inferior and limited jurisdiction, and possess no power or jurisdiction except that which is expressly conferred by the statute and such as is necessarily implied or incidental to the power or jurisdiction so conferred. McNulty v. Connew, 50 Ind. 569, and cases there cited; Brown v. Goble, supra. It will be observed that under the facts alleged in the complaint the object of this action is to set aside and vacate a judgment procured or obtained by the alleged fraud of appellee. The ancient principle that fraud vitiates everything is applicable to judgments. Adams School Township v. Irwin, 150 Ind. 12, 49 N. E. 806; State v. Hindman, 159 Ind. 586, 65 N. E. 911. That a court of superior general jurisdiction may upon sufficient facts set aside and annul a judgment obtained by fraud, and relieve the party so defrauded therefrom, is a well-settled proposition. Nealis. Adm'r, v. Dicks, 72 Ind. 374; Hogg v. Link, 90 Ind. 346; Spabr v. Hollingshead, 8 Blackf. 415; Nicholson v. Nicholson, 113 Ind. 131, 15 N. E. 223; English v. Aldrich, 132 Ind. 500, 31 N. E. 456, 32 Am. St. Rep. 270.

As the power to set aside and annul judgments procured by fraud is lodged in courts of superior general jurisdiction, which are invested with the power to grant relief in equity or chancery cases, it is manifest that anpellant, in commencing his action in the city court of Hammond, selected the wrong tribunal. While a city court, like a justice of the peace, in the trial of a cause over which it has jurisdiction of the subjectmatter should be guided and controlled by both legal and equitable principles, so far as applicable, nevertheless such a court possesses no equity or chancery jurisdiction, or powers which will authorize it to review and set aside either its own judgment or that of any other court on the ground that such judgment was obtained or procured by fraud. Section 3669, Burns' Ann. St. 1901, in the statute governing the creation of city courts, like the one herein involved, provides, among other things that a city nourt "shall have original concurrent jurisdiction with justices of the peace and with city mayors in all matters, criminal and civil, of which justices of the peace or mayors have or may hereafter have jurisdiction, and shall also have original concurrent jurisdiction with the circuit court in civil causes where the amount in controversy does not exceed five hundred dollars, except in actions for slander, libel, foreclosure of mortgages on real estate or where the title of real estate is in issue, ceedings or record in a cause, no formal motion is necessary to present that question to the court. McCoy y. Able, 131 Ind. 417, 30 N. E. 528, 31 N. E. 453. Such objection may be interposed for the first time in the Supreme Court on appeal. Branson v. Studabaker, 133 Ind. 147, 33 N. E. 98; Elliott's App. Procedure, § 470; Ewbank's Manual, § 7.

It must follow, and we so adjudge, that the city court of Hammond had no jurisdiction over the subject-matter of this action, and consequently the Lake Sưperior court acquired none thereover by the appeal. The cause is therefore remanded to the Lake superior court, at the cost of ap-. pellant, with instructions to that court to vacate its judgment, and to permit appellant, if he desires, to dismiss the action; otherwise, the appeal from the city court should be dismissed.

GILLETT, J., did not participate in the decision of this cause.

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excepting all matters relating to the settlement of decedents' estates, appointment of guardians and all matters cunnected therewith. Such court shall be governed so far as may be by the laws, rules, practice and pleadings governing proceedings in the circuit court of the state, except as in this act is otherwise provided.” It will be noted that this statute in vests city courts with original concurrent jurisdiction with justices of the peace and with the city mayor. By section 3497 a mayor of the city, in addition to the particular powers therein granted, is in civil actions invested, within the limits of the city, with the jurisdiction and powers of justices of the peace. Turning to section 1500, Burns' Ann. St. 1901, we find that therein it is provided that “justices of the peace shall have jurisdiction to try and determine suits founded on contract or tort, where the debt or damage claimed or value of the property sought to be recovered, does not exceed one hundred dollars, and concurrent jurisdiction to the amount of two hundred dollars, but the defendant may confess judgment for any sum not exceeding three hundred dollars. No justice shall have jurisdiction in any action for slander, for malicious prosecution, or breach of marriage contract, nor in any action wherein the title to lands shall come in quaestion, or the justice be related by blood or marriage to either party."

That a justice of the peace under the laws of this state is not invested with the powers of a court of equity, and is not authorized to assume jurisdiction and award relief in equity cases, as is a court of superior general jurisdiction, is settled by repeated decisions of this court. Brown v. Goble, 97 Ind. 86, and cases there cited; Leary v. Dyson, 98 Ind. 317; Greenwafat v. May, 127 Ind. 511, 27 N. E. 158, 22 Am. St. Rep. 660. In the latter appeal Judge Elliott, speaking for the court, said: "As the judgment for costs was

, obtained by fraud, equity will enjoin its collection; for the justice of the peace had no authority to review his own judgment on the ground of fraud. A justice of the peace possesses no equity jurisdiction, and cannot set aside or annul his judgment, except in the mode provided by statute, and the statute does not authorize him to review a judgment. Ainsworth v. Atkinson, 14 Ind. 538; Snell v. Mohan, 38 Ind. 494; Richards v. Reed, 39 Ind. 330; Doyle v. State, ex rel. Shetterly, 61 Ind. 324; Brown v. Goble, 97 Ind. 86.” In view of the statute conferring jurisdiction upon city courts, it is evident that, if a justice of the peace has no equity jurisdiction, neither is a city court invested therewith. An objection that a court has no jurisdiction of the subject-matter of the action cannot be waived either by the silence or express consent of the parties, and may be interposed at any stage of the action. Where want of jurisdiction of the subjectmatter is apparent upon the face of the pro

(167 Ind. 171) McSWANE v. FOREMAN et al. (No. 20,450.) (Supreme Court of Indiana. Oct. 5, 1906.)

, 1. CONTEMPT - INDIRECT CONTEMPT – JUDGMENT-APPEALABILITY.

A proceeding to punish a party for failure to attend and testify as a witness on notice of his examination before trial, in violation of Burns' Ann. St. 1901, 8 521, providing that a party refusing to attend and testify may be punished for a contempt, is one for an indirect contempt regulated by section 1025, providing for an appeal as in cases of direct contempt under section 1023, which provides that a person found guilty of a contempt may except to the judgment, and the party, on being adjudged guilty and punished by the dismissal of his action, is entitled to appeal without a motion for a new trial.

[Ed. Note.—For cases in point, see vol. 10, Cent. Dig. Contempt, $ 229.] 2. DISCOVERY-EXAMINATION BEFORE TRIAL

PLACE OF EXAMINATION SEARCHES AND SEIZURES-INTERFERENCE WITH PRIVACY OF HOME.

Under the common law as well as under Bill of Rights, § 11, declaring that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, a party has not the right to examine the adverse party as a witness before trial at the dwelling house of the adverse party. 3. CONTEMPT-DEFENSE--CONCLUSIVENESS.

For the purposes of a proceeding for an indirect contempt, the showing made by the party charged imports verity.

[Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Contempt, $ 181.] 4. DISCOVERY-EXAMINATION OF PARTY BEFORE TRIAL

OBJECTIONS PRIVACY OF HOME-WAIVER.

A party gave notice to the adverse party for his examination as a witness before trial. The notice provided for the taking of the examination at the dwelling house of the adverse party, who absented himself from his home at the time fixed and locked the house. Held, that he did not waive his privilege of prevent

ing an invasion of his house by the party and met the attorney for appellant in the town his counsel.

of Boonville, and he merely informed them Appeal from Circuit Court, Posey County; that he had been called away on business, 0. M. Welborn, Judge.

and would not attend the examination. Action by Sylvester F. McSwane against From the silence of the affidavits, which conOrville P. Foreman and another. From a stituted the showing by appellee, we infer judgment of dismissal, plaintiff appeals. Re- that the grounds on which he based his versed and remanded.

refusal to give his examination at the place Thos. W. Lindsey and F. P. Leonard, for

fixed were not stated to the other side. appellant. Hatfield & Hemenway, for ap

Apparently he was content simply to absent pellees.

himself, acting on the advice of counsel, because the place fixed for the taking of the

examination was objectionable to him for GILLETT, J. On the motion of appellee Bowker Fertilizer Company, the court be

the reasons stated. The contention is inter

posed on behalf of said appellee that the low struck appellant's complaint from the files and dismissed his action, on the ground

question which appellant seeks to present by of a failure to give his examination as a

his assignment of error ought to have been party. This ruling is assigned as error.

raised by a motion for a new trial. Section Both the notice to appellant as a party and

521, Burns' Ann. St. 1901, provides that any the subpæna issued for him as a witness

party refusing to attend and testify as provided for the taking of his examination at provided in the prior sections “may be punishhis dwelling house, some 12 or 14 miles in

ed for a contempt, and his complaint, answer, the country. It appears without dispute

or reply may be stricken out." The proceedthat appellant's family consisted of his wife, ing, being for an indirect contempt, is governand five children, and that they dwelt in a

ed as to the procedure by section 1025, Burns' house of three rooms; that there was no

Ann. St. 1901. That section provides for an place therein to accommodate the attorneys

appeal to this court as in cases of direct conand the notary public who would have been

tempt. In a proceeding of the latter charrequired to attend said examination; that

acter, provision is made by section 1023, appellant's wife was of a highly nervous

Burns' Ann. St. 1901, for the right, where the temperament, easily excited and easily em

defendant to such proceeding has been adbarrassed before strangers, and that it would judged to pay a fine of $50 or more or to have been very embarrassing to her and the

be imprisoned, to move the court to reconother members of appellant's family to have

sider its opinion and judgment upon the taken said examination there; that appel- facts before it, or upon the affidavits of any lant had been advised by his attorney that, or all persons who were present and heard as a matter of constitutional right, he was or saw the conduct alleged to constitute the authorized to deny access to his home to the

contempt. The punishment of striking out persons seeking to examine him; that for the complaint and dismissing the action is said reason, and because of his belief that not such a punishment as is provided for by the notice or subpæna for him to attend as

the provision just mentioned, and falls witha witness was insufficient, he absented him

in the earlier and more general language of self from his home on the day in question, said section, by which it is provided that the and that, when said appellee's attorneys and person found guilty of contempt may "exthe notary public appeared there, within the cept to the opinion and judgment of the hours fixed, for the purpose of taking said court.” No doubt the right to appeal in examination, they found the house locked

such a case is governed by the general statand that there was no one about the prem

ute concerning appeals. In a case of this ises. When the notice to take said examina- character, which falls without the provision tion was served on appellant's attorney, he concerning the special cases mentioned in objected to the place fixed, but we infer section 1023, supra, we are of opinion that a that the only objection stated was that it

motion for a new trial is unnecessary. The necessitated a trip into the country. The ad- proceeding is summary, and there is really vice which said attorney gave to his client no trial within the provisions of the Code concerning his constitutional right was given governing motions for a new trial. The sole subsequently, after the subpoena of the no- question before the court in such a matter, tary public had been served. At the time the the contempt charged being indirect, is notice of the taking of said examination was whether the party has fully answered the served on appellant's attorney, he informed charge made against him. State v. Earl, 41 opposite counsel that his client was willing Ind. 464; Burke v. State, 47 Ind. 528; Wilto appear at any time and place away from son v. State, 57 Ind. 71; Fishback v. State, his own home for the purpose of being ex- 131 Ind. 304, 30 N. E. 1088; Stewart v. amined, and the counter showing concluded State, 140 Ind. 7, 39 N. E. 508. In such a with a renewal of such offer. It is alleged case there would be no more occasion for a in the affidavits in support of a motion to retrial than there would be where a cause strike out that said appellee's attorneys, on was submitted as an agreed case. the day said examination was to be taken, tion would be simply one of law-in the

The ques

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first instance, as to whether the facts con- lege is reasonably adapted to the end, that stituted a cause of action; in the other, as is all that is required. Boyd v. United to whether the party had purged himself by States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. his showing. See Fisher v. Purdue, 48 Ind. Ed. 746. In the case last cited a statute B23, 326; State ex rel. v. Board, 66 Ind. 216; which provided that books, papers, and inLofton v. Moore, 83 Ind, 112; Witz v. Dale, voices should be produced, on motion of the 129 Ind. 120, 27 N. E. 498. Besides, the rul- attorney for the government, or else the aling striking out the complaint bears a closer legations of the motion should be taken as resemblance to a ruling applying to the plead- true, was held unconstitutional as applied to ings than to the trial proper. As was said in an action to declare goods forfeited under Cates v. Thayer, 93 Ind. 156: "Issues are al- the revenue laws, as violative of both the ways, where a proper course is pursued, clos- fourth and fifth amendments to the federal ed before trial, and what is closed with the Constitution. Mr. Justice Bradley, in decidpleadings must be regarded as belonging to ing that case, after quoting at length from them rather than to matters connected with Lord Camden's celebrated opinion in Entick the trial." We are of opinion that the exer- v. Carrington, 19 Howell's State Trials, 1029, cise of the right given by the statute “to ex- said: "The principles laid down in this cept to the opinion and judgment of the court” opinion affect the very essence of constitusaves the question and that that ruling may tional liberty and security. They reach farbe made the basis of an assignment of error. ther than the concrete form of the case then

Taking up the main question, there can be before the court, with its adventitious cirno doubt that it was the right of appellant cumstances; they apply to all invasions, on to exclude the attorneys for said appellee the part of the government and its employés, and the notary public from his house.

The

of the sanctity of a man's home and the tenderness of the common law for the right privacies of life. It is not the breaking of or privacy and personal security, which

,

his doors, and the rummaging of his drawers, finds expression in the maxim "every man's that constitutes the essence of the offense; house is his castle," does not call for any but it is the invasion of his indefeasible panegyric on our part; it suffices to say that right to personal security, personal liberty, as in earlier times the right of the subject and private property, where that right has stood over against the possibility of the never been forfeited by his conviction of abuse of executive authority, so under modern some public offense it is the invasion of conditions the right is a check upon the un

this sacred right which underlies the essence due exercise of the powers of government of Lord Camden's judgment. Breaking into generally. Second only to exemption from a house and opening boxes and drawers are arbitrary control of the person is the secur- circumstances of aggravation; but any forci. ity of the citizen in his home, and so funda- ble and compulsory extortion of a man's own mental is the principle that it has been testimony or of his private papers to be used given expression in the fourth amendment as evidence to convict him of crime or to to the United States Constitution and in sec- forfeit his goods is within the condemnation tion 11 of the Bill of Rights of Indiana, the of that judgment. In this regard the fourth first operating as a check upon the federal and fifth amendments run almost into each government, while the other has a like opera- other." tion as against the state. Counsel for appel- In view of the above case, we are justified lee admit their lack of right to examine ap- in saying that the process of the examining pellant in his own home if he had at the officer was ineffectual to command appellant time availed himself of his privilege. They to give his examination within the precincts contend, however, that the claim advanced of his own house, so that the invalidity of by him in response to the rule to show cause the proceeding went to the very process itwas an afterthought, and also that he should self. As we conceive, the right being the have notified them of his objection prior to principal thing, appellant could be deprived the time fixed for his examination, or have of his privilege in respect to his home only asserted his objection to the invasion when by a waiver thereof. It might have been threatened. As to the statement that the more courteous to opposite counsel had they claim was an afterthought, it is sufficient to been informed of appellant's intention to dissay that the showing made by appellant, regard the process and of his reasons therewhich, for the purposes of a proceeding for for, but it cannot successfully be asserted that indirect contempt, imports absolute verity, any act, either of himself or of his attorney, shows the contrary. As to the further claim, amounted in law to a relinquishment of his we have to say that as the courts are not right. His conduct in locking the house and disposed to give a close and literal construc- departing was not only the very antithesis tion to those provisions of the fundamental of a waiver, but was a direct means of aslaw which are designed to stand as bulwarks serting his constitutional prerogative. in support of individual liberty, so, in their The order and judgment striking the comapplication, the right is regarded as the prin- plaint from the files and dismissing the accipal thing, and, if the means resorted to tion is reversed, at the cost of the party by the citizen for the assertion of his privi- | procuring said order,

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