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ered therein by fraud. 3. APPEAL TIME.
OBJECTIONS TO JURISDICTION
tirely the cause or causes producing such | diction of a suit to set aside a judgment recovcondition. There was evidence in the record tending to show that the condition of the floor was due to its having been used by appellant before it became hard, and the instruction was clearly erroneous in ignoring that question. Our conclusion is that the ruling of the trial court on instructions was substantially correct.
Many errors are assigned on the admission and exclusion of evidence; some 18 of which are urged in the argument. While the rulings were not, perhaps, in strict conformity with the rules of evidence, we are unable to see wherein the appellant has been substantially injured thereby. Complaint is further made of the refusal of the court, after the suit had been dismissed as to A. Bauer & Co., to permit the filing of pleas of the five-year statute of limitations, both as to the plaintiffs themselves and the receiver. It does not satisfactorily appear from the record that the latter was made a party plaintiff. An offer to do so was made, but the judgment rendered indicates that it was in favor of the original plaintiffs themselves, and not in favor of the receiver. But however this may be, we have already said the contract consisted of written propositions, which were accepted by the defendants, thus constituting an agreement in writing, and therefore the right of recovery was not barred by the five-year statute of limitations. It was not error to refuse the pleas to be filed.
The issues in this case are few and simple. Many of the numerous errors assigned and urged in the argument are unimportant, as affecting the substantial merits of the case. We are of the opinion that there was no substantial error committed by the trial court and that the Appellate Court did not err in affirming its judgment.
The judgment of the Appellate Court will accordingly be affirmed. Judgment affirmed.
(167 Ind. 153)
Where want of jurisdiction of the subjectmatter is apparent on the face of the proceedings or record in a cause, the objection may be raised for the first time in the Supreme Court on appeal.
[Ed. Note.-For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 1166-1176.] 4. SAME-INTERMEDIATE APPEAL.
Where a city court had no jurisdiction of a suit to set aside a judgment for fraud, the superior court could not obtain jurisdiction of such suit by appeal.
[Ed. Note.-For cases in point, see vol. 2, Cent. Dig. Appeal and Error, § 81.]
Appeal from Superior Court, Lake County; H. B. Tuthill, Judge.
Action by Phillip Steinmetz, Jr., a minor, by his next friend, against the G. H. Hammond Company. From a judgment dismissing the complaint, plaintiff appeals. Case transferred from Appellate Court under Burns' Ann. St. 1901, § 1337j. Cause remanded.
L. L. Bomberger, for appellant. Jno. B. Peterson, for appellee.
JORDAN, C. J. This action was commenced on June 2, 1903, by appellant, a minor, by his next friend, in the city court of the city of Hammond, Lake county, Ind., to have a certain judgment rendered in said court declared void, vacated, and set aside on the ground of fraud perpetrated by appellee in securing the rendition thereof. The following are some of the material facts disclosed by the amended complaint filed in the proceedings: On November 12, 1902, appellant, Phillip Steinmetz, a minor in the employ of appellee company, was injured through its alleged negligence while at work in its packing house at the city of Hammond, Ind., on account of which injuries his left arm was required to be amputated near the shoulder, etc. On November 15, 1902, the father of appellant, Phillip Steinmetz, as his next friend, instituted in the city court of Hammond against appellee, in the name of
STEINMETZ v. G. H. HAMMOND CO. (No. appellant, an action for damages arising out
(Supreme Court of Indiana. Oct. 2, 1906.) 1. JUDGMENT-FRAUD-VACATION.
A court of superior general jurisdiction may set aside and annul a judgment obtained by fraud.
[Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 836-840.]
2. COURTS-CITY COURTS-JURISDICTION.
Burns' Ann. St. 1901, § 3669, provides that a city court shall have original and concurrent jurisdiction with justices of the peace and city mayors in all matters, criminal and civil, of which justices of the peace or mayors have or may hereafter have jurisdiction. By sec tion 3497 a mayor is given civil jurisdiction within the limits of the city concurrent with the jurisdiction and powers of justices of the peace, whose jurisdiction, specified by section 1500, excludes jurisdiction to grant equitable relief. Held, that a city court had no juris
of said injuries. The city of Hammond is incorporated under the general laws of this state pertaining to the incorporation of cities. The damages sought to be recovered in the action were laid at $500, the limit of the jurisdiction of said court under the laws of this state in an action for the recovery of money. It is shown that the defendant (appellee herein) by its attorneys appeared to said action without any service of process. A jury was demanded and impaneled, and it returned a verdict in favor of the plaintiff for $500. It is charged that this verdict was not returned upon any evidence given in the case, but was returned solely upon statements made to the jurors that $500 was the amount agreed upon by the parties. A 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 upon 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 well-settled proposition. Nealis, Adm'r, v. Dicks, 72 Ind. 374; Hogg v. Link, 90 Ind. 346; Spahr 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 appellant, 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 "ourt "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,
excepting all matters relating to the settlement of decedents' estates, appointment of guardians and all matters connected 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 invests 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 question, 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; Greenwaldt 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
ceedings or record in a cause, no formal motion is necessary to present that question to the court. McCoy v. 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 Superior 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.
(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, § 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 TRIALPLACE OF EXAMINATION SEARCHES AND SEIZURES-INTERFERENCE WITH PRIVACY OF
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.
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.]
ing an invasion of his house by the party and his counsel.
met the attorney for appellant in the town. of Boonville, and he merely informed them
Appeal from Circuit Court, Posey County; that he had been called away on business, O. M. Welborn, Judge.
Action by Sylvester F. McSwane against Orville P. Foreman and another. From a judgment of dismissal, plaintiff appeals. Reversed and remanded.
Thos. W. Lindsey and F. P. Leonard, for appellant. Hatfield & Hemenway, for appellees.
GILLETT, J. On the motion of appellee Bowker Fertilizer Company, the court below struck appellant's complaint from the files and dismissed his action, on the ground of a failure to give his examination as a party. This ruling is assigned as error.
Both the notice to appellant as a party and the subpoena issued for him as a witness provided for the taking of his examination at his dwelling house, some 12 or 14 miles in the country. It appears without dispute that appellant's family consisted of his wife, and five children, and that they dwelt in a house of three rooms; that there was no place therein to accommodate the attorneys and the notary public who would have been required to attend said examination; that appellant's wife was of a highly nervous temperament, easily excited and easily embarrassed before strangers, and that it would have been very embarrassing to her and the other members of appellant's family to have taken said examination there; that appellant had been advised by his attorney that, as a matter of constitutional right, he was authorized to deny access to his home to the persons seeking to examine him; that for said reason, and because of his belief that the notice or subpoena for him to attend as a witness was insufficient, he absented himself from his home on the day in question, and that, when said appellee's attorneys and the notary public appeared there, within the hours fixed, for the purpose of taking said examination, they found the house locked and that there was no one about the premises. When the notice to take said examination was served on appellant's attorney, he objected to the place fixed, but we infer that the only objection stated was that it necessitated a trip into the country. The advice which said attorney gave to his client concerning his constitutional right was given subsequently, after the subpoena of the notary public had been served. At the time the notice of the taking of said examination was served on appellant's attorney, he informed opposite counsel that his client was willing to appear at any time and place away from his own home for the purpose of being examined, and the counter showing concluded with a renewal of such offer. It is alleged in the affidavits in support of a motion to strike out that said appellee's attorneys, on the day said examination was to be taken,
and would not attend the examination. From the silence of the affidavits, which constituted the showing by appellee, we infer that the grounds on which he based his refusal to give his examination at the place fixed were not stated to the other side. Apparently he was content simply to absent himself, acting on the advice of counsel, because the place fixed for the taking of the examination was objectionable to him for the reasons stated. The contention is interposed on behalf of said appellee that the question which appellant seeks to present by his assignment of error ought to have been raised by a motion for a new trial. Section 521, Burns' Ann. St. 1901, provides that any party refusing to attend and testify as provided in the prior sections "may be punished for a contempt, and his complaint, answer, or reply may be stricken out." The proceeding, being for an indirect contempt, is governed as to the procedure by section 1025, Burns' Ann. St. 1901. That section provides for an appeal to this court as in cases of direct contempt. In a proceeding of the latter character, provision is made by section 1023, Burns' Ann. St. 1901, for the right, where the defendant to such proceeding has been adjudged to pay a fine of $50 or more or to be imprisoned, to move the court to reconsider its opinion and judgment upon the facts before it, or upon the affidavits of any or all persons who were present and heard or saw the conduct alleged to constitute the contempt. The punishment of striking out the complaint and dismissing the action is not such a punishment as is provided for by the provision just mentioned, and falls within the earlier and more general language of said section, by which it is provided that the person found guilty of contempt may "except to the opinion and judgment of the court." No doubt the right to appeal in such a case is governed by the general statute concerning appeals. In a case of this character, which falls without the provision concerning the special cases mentioned in section 1023, supra, we are of opinion that a motion for a new trial is unnecessary. The proceeding is summary, and there is really no trial within the provisions of the Code governing motions for a new trial. The sole question before the court in such a matter, the contempt charged being indirect, is whether the party has fully answered the charge made against him. State v. Earl, 41 Ind. 464; Burke v. State, 47 Ind. 528; Wilson v. State, 57 Ind. 71; Fishback v. State, 131 Ind. 304, 30 N. E. 1088; Stewart v. State, 140 Ind. 7, 39 N. E. 508. In such a case there would be no more occasion for a retrial than there would be where a cause was submitted as an agreed case. The question would be simply one of law-in the
first instance, as to whether the facts constituted a cause of action; in the other, as to whether the party had purged himself by his showing. See Fisher v. Purdue, 48 Ind. 823, 326; State ex rel. v. Board, 66 Ind. 216; Lofton v. Moore, 83 Ind. 112; Witz v. Dale, 129 Ind. 120, 27 N. E. 498. Besides, the ruling striking out the complaint bears a closer resemblance to a ruling applying to the pleadings than to the trial proper. As was said in Cates v. Thayer, 93 Ind. 156: "Issues are always, where a proper course is pursued, closed before trial, and what is closed with the pleadings must be regarded as belonging to them rather than to matters connected with the trial." We are of opinion that the exercise of the right given by the statute "to except to the opinion and judgment of the court" saves the question and that that ruling may be made the basis of an assignment of error.
lege is reasonably adapted to the end, that is all that is required. Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746. In the case last cited a statute which provided that books, papers, and invoices should be produced, on motion of the attorney for the government, or else the allegations of the motion should be taken as true, was held unconstitutional as applied to an action to declare goods forfeited under the revenue laws, as violative of both the fourth and fifth amendments to the federal Constitution. Mr. Justice Bradley, in deciding that case, after quoting at length from Lord Camden's celebrated opinion in Entick v. Carrington, 19 Howell's State Trials, 1029, said: "The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions, on the part of the government and its employés, of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right to personal security, personal liberty, and private property, where that right has never been forfeited by his conviction of some public offense-it is the invasion of this sacred right which underlies the essence of Lord Camden's judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods is within the condemnation of that judgment. In this regard the fourth and fifth amendments run almost into each other."
Taking up the main question, there can be no doubt that it was the right of appellant to exclude the attorneys for said appellee and the notary public from his house. The tenderness of the common law for the right or privacy and personal security, which finds expression in the maxim "every man's house is his castle," does not call for any panegyric on our part; it suffices to say that as in earlier times the right of the subject stood over against the possibility of the abuse of executive authority, so under modern conditions the right is a check upon the undue exercise of the powers of government generally. Second only to exemption from arbitrary control of the person is the security of the citizen in his home, and so fundamental is the principle that it has been given expression in the fourth amendment to the United States Constitution and in section 11 of the Bill of Rights of Indiana, the first operating as a check upon the federal government, while the other has a like operation as against the state. Counsel for appellee admit their lack of right to examine appellant in his own home if he had at the time availed himself of his privilege. They contend, however, that the claim advanced by him in response to the rule to show cause was an afterthought, and also that he should have notified them of his objection prior to the time fixed for his examination, or have asserted his objection to the invasion when threatened. As to the statement that the claim was an afterthought, it is sufficient to say that the showing made by appellant, which, for the purposes of a proceeding for indirect contempt, imports absolute verity, shows the contrary. As to the further claim, we have to say that as the courts are not disposed to give a close and literal construction to those provisions of the fundamental law which are designed to stand as bulwarks in support of individual liberty, so, in their application, the right is regarded as the principal thing, and, if the means resorted to by the citizen for the assertion of his privi- | procuring said order,
In view of the above case, we are justified in saying that the process of the examining officer was ineffectual to command appellant to give his examination within the precincts of his own house, so that the invalidity of the proceeding went to the very process itself. As we conceive, the right being the principal thing, appellant could be deprived of his privilege in respect to his home only by a waiver thereof. It might have been more courteous to opposite counsel had they been informed of appellant's intention to disregard the process and of his reasons therefor, but it cannot successfully be asserted that any act, either of himself or of his attorney. amounted in law to a relinquishment of his right. His conduct in locking the house and departing was not only the very antithesis of a waiver, but was a direct means of asserting his constitutional prerogative.
The order and judgment striking the complaint from the files and dismissing the action is reversed, at the cost of the party