Imágenes de páginas

2. The next contention is based upon the days' notice was given. If a mortgagor first report of the auditor, in which he stated sought to set aside a sale on the ground of that he found that additions were made to insufficient notice, he would prevail; but we the stock of goods after the date of the mort see no ground for holding in a case like the gage, and that he was left in doubt whether present, where the mortgagor assents and such added stock was sold at the foreclos treats the notice as good, that the sale is not ure sale. When the case was recommitted valid. Besides, the plaintiff was a purchaser to the auditor, he found on this point as fol for value, and was not affected by an irreg. lows: “Between the date of the mortgage ularity in the execution of the power of sale. and July 12th the mortgagor added about Stevenson v. Hano, 148 Mass, 616, 20 N. E. $50 worth of goods to his stock. I do not 200; Silva v. Turner, 166 Mass. 407, 413, 44 find that any such after-acquired property N. E. 532. The case of Rogers v. Barnes, was sold at the auction." The mortgage in 169 Mass. 179, 47 N. E. 602, 38 L. R. A. 145, question contained this clause: “This mort.

decided merely that a mortgagor could gage shall apply to all future acquired stock

maintain an action of tort against a mortthat I shall bave in my business.” The de

gagee for the wrongful execution of a power fendant contends that the burden of proof

of sale, when there had been no breach of was upon the plaintiff to show that no after

any condition of the mortgage, although the acquired goods were sold at the auction, and

land had been sold to a bona fide purchaser that the auditor's report does not show this.

for value. There is no occasion to consider these ques

4. The last contention of the defendant is tions. The law in Massachusetts is now

that the foreclosure is void because the notice well settled. While property acquired after

of the foreclosure, with an affidavit of the a mortgage is delivered does not pass to the

service thereof was not recorded. It appears mortgagee as against attaching creditors

in the original report of the auditor that and subsequent vendees and mortgagees,

there was no evidence concerning the rec. yet a provision in a mortgage that it shall

ord of the notice. In the supplemental recover after acquired goods operates as an

| port nothing is said on the subject. We executory agreement that such goods shall be

doubt whether any such question is open to holden by the mortgagee as security, when acquired by the mortgagor, and the mort

the defendant; but, if it is open, and the no

tice was not recorded, it does not follow that gagee may take possession before the rights

the foreclosure was void. of third persons intervene. The mere fact that a person is a creditor is not enough.

The statute upon wbich the defendant He must have a claim upon the goods be

relies is Rev. Laws, C. 198, § 6; but this fore the mortgagee takes possession, either

section, together with sections 4, 5, and 7, by attachment or by a seizure upon an execu

relates to the redemption of mortgages, and tion. Rowley v. Rice, 11 Metc. 333; Blanch

points out one method of foreclosure. They ard v. Cooke, 144 Mass. 207, 223, 11 N. E. 83;

have nothing to do with a foreclosure under Bennett v. Bailey, 150 Mass. 257, 260, 22 N. E.

a power of sale, except that section 6 pro916; Bliss v. Crosier, 159 Mass. 498, 34 N. E.

vides: "The mortgagor or a person law. 1075. In the case at bar the only justifica

fully claiming under him, may after breach tion which the defendant sets up is the seiz-, of condition redeem the mortgaged property ure of the goods on execution nearly a month

before it is sold in pursuance of the conafter the sale.

tract between the parties, or before the 3. The next contention of the defendant right of redemption is foreclosed." The reis that the foreclosure is invalid because no maining sections point out how a mortgagee proper notice was given. By the terms of the may foreclose. They have no relation to a mortgage five days' notice in writing of the foreclosure under a power of sale contained time and place of sale were required. The auditor bas found that either four or five Judgment for the plaintiff affirmed.




(166 Ind. 511)

, that appeal may be taken from an interlocutory MORRISON et al. v. INDIANAPOLIS & W. order overruling the objections in the manner RY. CO. et al. (No. 20,678.)?

that appeals are taken from final judgments in

civil actions, and making no provision for a (Supreme Court of Indiana. March 8, 1906.) motion for a new trial, no such motion need be 1. EMINENT DOMAIN - OBJECTIONS OF DE

made in respect to such hearing.

8. CONSTITUTIONAL LAW - DUE PROCESS OF FENDANT-FILING-TIME. Act Feb. 27, 1905, $ 3 (Acts 1905, p. 61,

LAW. C. 48; 4 Burns' Supp. 1905, § 893 et seq.), pro

Since Act Feb. 27, 1905 (Acts 1905, p. 59, vides that the notice to defendants in condemna

C. 48; 4 Burns' Supp. 1905, § 893 et seq.), protion proceedings shall require defendants to ap

vides for a hearing and determination of all obpear on a day fixed by plaintiff by indorsement

jections to the right of condemnation prior to

the appointment of appraisers or the taking of on the complaint. Section 5 provides that de

the property, it is not unconstitutional as a depfendant's objections "shall be filed not later than the first appearance of such defendant."

rivation of property without due process of Held that, even though section 5 contemplates

law. a filing by defendants on the day they are noti

9. APPEAL-OBJECTIONS Not RAISED IN LOWfied to appear, rather than on the day they do ER COURT-PLEADINGS. appear, the provision is directory only, and does

Objections to the sufficiency of the comnot deprive the court of power, on proper show plaint in condemnation proceedings, not pointed ing by defendant or on consent of plaintiff, to out or urged on appeal, will be considered as permit a filing by defendants appearing after

waived. the time notified. 2. SAME_WAIVER BY PLAINTIFF.

Appeal from Superior Court, Marion CounA failure of plaintiff to object to the filing of | ty; Vinson Carter, Judge. objections by defendant appearing after the Condemnation proceedings by the Indiantime fixed by the complaint is a waiver of the

apolis & Western Railway Company and requirement as to the time of filing.

others against Samuel L. J. Morrison and 3. SAME-OBJECTIONS-ISSUES PRESENTABLE. Act Feb. 27, 1905, $ 1 (Acts 1905, p. 59,

others. From an interlocutory decree in C. 48; 4 Burns' Supp. 1905, § 893 et seq.), pro favor of plaintiffs, defendants appeal. Revides that any corporation having the right to versed and remanded. exercise the power of eminent domain shall first

Charles Martindale and Hawkins, Smith & make an effort to purchase the property. Section 3 (page 61) provides that the notice to de- Hawkins, for appellants. Taylor & Woods fendants in condemnation proceedings shall re and Harding & Hovey, for appellees. quire them to "show cause why the property described should not be condemned as prayed for in the complaint." Section 4 provides for the JORDAN, J. This is a special proceedappointment of appraisers when the court is ing by appellee company whereby it seeks to satisfied as to the right of plaintiffs to exercise the power. Section 5 provides for written ob

condemn certain lands for a right of way jections by defendant on the ground of lack of

under and in pursuance of an act of the jurisdiction, lack of power in plaintiff to exer- Legislature entitled "An act concerning procise right, "or for any other reasons disclosed

ceedings in the exercise of eminent domain," in the complaint or set up in such objections,"

approved February 27, 1905, and in force and forbids further pleadings except the answer provided for in section 8 (page 63). Section 8

April 15, 1905 (vide chapter 48, p. 59, Acts provides for a filing of exceptions to the assess 1903; 4 Burns' Supp. 1905, § 893 et seq.). ment by any one aggrieved and that the cause

Appellee, as plaintiff below, on May 25, 1905. shall proceed to issue trial and judgment. Held, that not only may the objections authorized by

filed its complaint in the office of the susection 5 fill the office of a demurrer, but issues perior court of Marion county, Ind.; the latof fact defeating the condemnation are thereby ter county being the one in which the lands properly presented, rather than by the excep

sought to be appropriated are situated. By tions referred to in section 8.

the complaint appellants and other landown4. SAME - POWER TO CONDEMN - CORPORATE EXISTENCE.

ers were made defendants. Proper notices Where the corporate existence of a corpora. or summons were issued by the clerk and tion seeking to condemn land is properly chal were duly served by the sheriff. By these lenged, it is incumbent on the plaintiff to show

notices they were notified to appear in court that it is either a de jure or a de facto corpora

June 10, 1905, and show cause why the tion. 5. SAME-DE FACTO CORPORATION.

property described in the complaint should A de facto corporation may maintain pro not be condemned. ceedings under the power of eminent domain. So far as the record discloses, appellants

[Ed. Note.-For cases in point, see vol. 18, first appeared to the proceedings on June 19, Cent. Dig. Eminent Domain, $ 458.]

1905, and at that time filed their written 6. SAME-OBJECTIONS-ISSUES—TRIAL.

objections to the proceedings under the origIt being proper to tender issues of fact in the written objections which under Act Feb.

inal complaint. There is nothing in the 27. 1905. & 5 (Acts 1905, p. 61, c. 48: 4 Burns'

record to show that appellee, at the time the Supp. 1905, 8 893 et seq.), owners of land are objections were filed, interposed any protest authorized to file in condemnation proceedings or objection to their filing. After the filing prior to the appointment of appraisers, a right to a trial of such issues will be implied.

thereof and on the same day, to wit, June 19, 7. SAME-TRIAL-MOTION FOR NEW TRIAL.

1905, appellee by leave of court, filed an Under Act Feb. 27, 1905, § 5 (Acts 1905,

amended complaint, and thereupon appellants, p. 59, c. 48; 4 Burns' Supp. 1905, $ 893 et seq.), by permission of court, renewed and refiled providing that in condemnation proceedings their written objections to the proceedings there shall be no pleadings except the complaint, defendant's written objections, and the ex

as presented by the said amended complaint. ceptions to the report of the appraisers, and | By the latter complaint appellee alleget, 2 Mandate corrected, 77 N. E. 744.

76 N.E.-61

among other things, the following: "That, whether the plaintiff's railroad is other than the plaintiff, Indianapolis & Western Rail. | a single track road, but the defendants are way Company, is a street railway corpora informed and believe and so charge that the tion, organized pursuant to the laws of the plaintiff's railroad is a single track railroad state of Indiana regulating and authorizing and that the right of way necessary for the the construction, maintenance, and opera same is nine feet wide and no more; that the tion of street railroads, interurban street plaintiff in its amended complaint states railroads, and suburban street railroads, "that the width of said right of way varies and that it was incorporated as a street from 12 feet to 50 feet, according to the railroad company for the purpose of con- depth of the cut and height of the fills structing, maintaining, and operating an in- | and the general topography of the country"; terurban street railroad from the city of that there are neither cuts nor fills upon Indianapolis, in said county and state, to. the property of the defendants which render the town of Danville in the county of Hend. it necessary to appropriate 50 feet in width ricks; thence to the city of Greencastle in of the lands of the defendants. (4) That the county of Putnam; thence to the city the amended complaint herein does not set of Brazil in the county of Clay; and to oper forth its specific description of the entire ate its cars thence to the city of Terre tract of land of these defendants and state Haute in the county of Vigo, in said state." whether the same includes the whole or It further alleged that the defendants (appel. only a part of the entire parcel or tract. lants herein) are the owners and claimants (5) That there is no such corporation as and holders of liens on the right of way that named as plaintiff herein, and said sought to be appropriated. The complaint plaintiff has no right to exercise the right described the right of way by its termini of eminent domain. (6) That the act under and alleged that the width thereof varies which said proceedings are had, to wit, chapfrom 12 to 50 feet according to the depth ter 48, p. 59, of the Acts of 1905, being an of the cut and the height of the fill and the act of the General Assembly of the state of general topography of the country. A par Indiana, entitled "An act concerning proceedticular description of each of the parcels of

ings in the exercise of eminent domain," land sought to be appropriated is set forth approved February 27, 1905, is in violation in the complaint, and it is alleged therein of section 1 of the fourteenth amendment to that the plaintiff had been unable to agree the Constitution of the United States, with the owners for the purchase of the The record shows that appellants demandlands in question, and prayed for their con ed that the court accord them a hearing on demnation and appropriation thereof for the the issue of facts formed by the averments use and purposes thereinbefore named and of the amended complaint and the written the right of the plaintiff to exercise the power objections thereto, and demanded the right of eminent domain for the use and purposes to introduce testimony upon such issues. therein sought. The complaint further pray This demand the court, over appellants ex. ed for the appointment of appraisers, for the ceptions and objections, denied, for the rea. issue of summons, and for, all other relief. son, as stated by the court, that under the

The grounds of the written objections in procedure of the statute upon which the terposed by appellants to the proceedings action was based it had no power to hear under the amended complaint are the follow any testimony on any issue of fact raised ing: (1) That the plaintiff has no right to by appellants' written objections, and thereexercise the power of eminent domain to the upon, without any hearing, it overruled said extent to which it proposes to appropriate written objections, to which ruling appelthe property of the defendants. (2) That the lants duly excepted. The court then anplaintiff in and by its amended complaint nounced that it would immediately proceed. does not state facts which show that it is to make an interlocutory order appointing entitled to exercise the right of eminent appraisers in said cause. It appears that domain to the extent proposed and attempted appellee's counsel thereupon tendered to the in and by these proceedings. (3) That under court, for entry in said cause, an interlocuthe statute under which the plaintiff is in tory order and decree which they had precorporated, which constitutes its charter, it viously prepared. To the entering of this or is authorized to exercise the right of eminent any other interlocutory order in the cause domain and appropriate so much land only appellants by counsel objected for the follow"as may be necessary for the construction, ing reasons: (1) That the plaintiff had not maintenance, and operation of its railroads, introduced or submitted any evidence in the railroad stations, depots, power houses, shops, cause to sustain any of the allegations of the car barns, offices, lines for transmission of complaint herein. (2) That there is and has electricity for heat, light, and power"; that been no evidence submitted to the court to the land proposed to be taken in this pro sustain any of the facts and allegations alleg. ceeding is not taken for the site of a station, ed in the complaint, nor any evidence to susterminal, power house, substation round tain the facts found in the decree and interhouse, yard, car barn, office building, or any locutory order. (3) That no evidence has other purpose except for a right of way; | been submitted to the court, and the court that the amended complaint does not state has no knowledge and information upon

which and from which the facts found in any statute existing or hereafter passed, the decree could be based. (4) That said and desiring to exercise such power, shall decree is submitted by the plaintiff and is do so only in the manner provided in this act, entered by the court without the introduction except as otherwise provided herein. Before or submission of any evidence in the cause proceeding to condemn, such person, corporaby any of the parties thereto. These objec tion or other body, may enter upon any land tions the court overruled and then announced for the purpose of examining and surveying that it would enter said interlocutory order the property sought to be appropriated, or and decree as requested by appellee, which rights sought to be acquired; and shall make it accordingly did, and the same is the order an effort to purchase for the use intended or decree from which this appeal is prosecut such lands, right of way, easement or other ed. After the entry of this decree appellants interest therein, or other property or right," filed a motion to strike it out, assigning in etc. said motion as reason therefor that no evi Section 2 (page 60) provides that "it such dence had been submitted to the court and person, corporation or other body shall not that, therefore, the court had no jurisdic agree with the owner of the land, or othtion to make or enter the interlocutory order er property or right, or with such guardian, in controversy. This motion was overruled, touching the damages sustained by such ownto which appellants excepted. Appeal pray er, as provided in the last section, the pered for and taken as provided by the statute. son, corporation or other body so seeking to

The errors assigned for reversal of the condemn may file a complaint for that purinterlocutory order in question are: (1) pose in the office of the clerk of the circuit That the court below had no jurisdiction of or superior court of the county where such the subject-matter. (2) That the court be land or other property or right is situated. low erred in overruling the objections of the Such complaint shall state: (Here follows appellants to the proceedings after the filing what the complaint is required to state.]" of the amended complaint. (3) That the Section 3 (page 61) provides that upon the court erred in overruling the oral objections | filing of the complaint the clerk shall issue of the appellants to the entering of the de a notice, which shall contain the names of cree and interlocutory order in this cause. the parties, a general description of the whole (4) That the court erred in overruling the property, etc., and require the defendant to motion of the appellants to strike out and appear on a day to be fixed by the plaintiff reject the decree and interlocutory order by indorsement on the complaint and show entered in said cause. (5) That said pro- cause why the property described should not ceedings are void and should be set aside be condemned as prayed for in the complaint. and dismissed for the reason that the act (Our italics.) under which said proceedings are had, to Section 4 (page 61) provides that “upon wit, chapter 48, p. 59, of the Acts of 1905, the return of such notice, showing service being an act of the General Assembly of the thereof for ten days, or proof of publication state of Indiana entitled “An act concerning for three successive weeks in a weekly news. proceedings in the exercise of eminent do paper of general circulation, * * * the main," approved February 27, 1905, is in. last publication to be five days before the day valid because it is in conflict with section set for the hearing, . * * the court, or 1 of the fourteenth amendment to the Consti. judge in vacation, being satisfied of the regtution of the United States.

ularity of the proceedings and the right of The contentions of appellants' counsel in the plaintiff to exercise the power of eminent the main are that the court denied them, at domain for the use sought, shall appoint three the preliminary hearing provided for by the disinterested freeholders of the county to statute, the right to be heard on the essential assess the damages, or benefits and damages, facts relative to appellee's right to condemn as the case may be, which the owner or own. and appropriate their lands, as it sought to ers severally may sustain or be entitled to by do under its complaint. The insistence is reason of said appropriation." . that, if the construction or interpretation Section 5 (page 61) reads as follows: "Any placed upon the statute in question by the defendant may object to such proceeding on court is correct, then the law is in conflict the ground that the court has no jurisdiction with both the federal and state Constitution. either of the subject-matter or of the person, In fact, the questions discussed by the re or that the plaintiff has no right to exercise spective parties to this appeal are principal. the power of eminent domain for the use ly based upon or relative to the proper con sought, or for any other reason disclosed in struction of the statute. It therefore be the complaint or set up in such objections. comes necessary that we refer to the several Such objections shall be in writing, separateprovisions of the act in question so far as ly stated and numbered, and shall be filed they are material to the proper determination not later than the first appearance of such of this appeal.

defendant; and no pleadings other than the Section 1, among other things, provides complaint and such statement of objections that "any person, corporation or other body shall be allowed in such cause, except the having the right to exercise the power of | answer provided for in section 8 of this act: eminent domain for any public use, under | Provided, that amendments to pleadings may De made upon leave of court. If any such | pellants did not file their objections on the objection shall be sustained, the plaintiff day they were notified to appear, their subsemay amend his complaint or may appeal quent filing was unwarranted, and they are to the Supreme or Appellate Court from in the same position as if they had filed no such decision, as and in the manner that | objection whatever, and consequently cannot appeals are taken from final judgments in be heard upon the question that they seek to civil actions, of which appeal all the par present in this appeal. It is not clear as to ties shall take notice and by which they shall whether the clause, “first appearance of such be bound. But if such objections are overrul defendant," contemplates or intends the day ed the court, or judge, shall appoint apprais upon which he, under the notice given, is ers as provided for in this act; and from required to appear, or the day on which he such interlocutory order overruling such ob actually does appear. Conceding, however, jections and appointing appraisers such de without deciding, that thereby the Legisla. fendants, or any of them, may appeal to the ture meant or intended the day on which he Supreme or Appellate Court from such de is required first to appear in response to the cisions as and in the manner that appeals are notice, we pass to a consideration of the proptaken from final judgments in civil actions, osition advanced by appellee's counsel. As upon filing with the clerk of such court à hereinbefore stated, appellants were summonbond with such penalty as the court, or judge, ed to appear on June 10, 1905, and show shall fix, with sufficient surety, payable to cause why their property should not be apthe plaintiff, conditioned for the diligent pros propriated by the plaintiff; but as to whethecution of such appeal and for the payment er they appeared on that day the record is of the judgment and costs which may be af silent, and, so far as shown, their first apfirmed and adjudged against appellants. pearance was on June 19, 1905, on which day Such appeal bond shall be filed within ten they appeared before the court and were perdays after the appointment of such apprais mitted to file their, written objections to the ers. All the parties shall take notice of and proceedings without any objections being inbe bound by such appeal. The transcript terposed to such filing on the part of the shall be filed in the office of the clerk of the appellee. Supreme Court within thirty days after the Passing to the question, then, as raised filing of the appeal bond. Such appeal shall by appellee's counsel: Does the clause of not stay proceedings in such cause."

the statute in controversy require not only Section 6 (page 62) prescribes the oath to the filing of the objections upon the first be taken by the appraisers and the manner appearance of defendant, but does it prohibit in which they shall determine and report their filing at a subsequent day, and thereby upon the assessment of damages.

deprive the court of the exercise of any disSection 7 (page 63) provides that, if the cretion in extending the time of their filing? plaintiff shall pay to the clerk of such court It is manifest, we think, that the purpose or the amount of damages thus assessed, "it object of the Legislature in exacting that tbe shall be lawful for such plaintiff to take pos written objections of the defendant in the session of and hold the interest in the lands proceedings should be filed not later than so appropriated for the uses sought in such

his first appearance was for the benefit of the complaint, subject to the appeal provided for plaintiff in such action, as it thereby enin section 5 of this act, but the amount of ables him to secure an early preliminary such benefits or damages shall be subject to hearing therein. That it should be conreview, as provided in the next section."

strued as merely directory and that it does Section 8 (page 63) is as follows: "Any

not strip the court of its discretionary power party to such action aggrieved by the assess

on a proper and sufficient showing on the ment of benefits or damages, may file written part of the defendant, or upon the consent exceptions thereto in the office of the clerk of the plaintiff, to grant or permit an extenof such court in vacation, or in open court sion of the time beyond the day of the de if in session, within ten days after the file fendant's first appearance for filing his obing of such report, and the cause shall fur jections to the proceedings, is well settled ther proceed to issue, trial and judgment as by the authorities. Martin V. Pifer, 96 Ind. in civil actions; the court may make such 245, and cases there cited; Smith v. Uhler, 99 further orders, and render such findings and Ind. 140; Wampler v. State ex rel., 148 Ind. judgments as may seem just. Such judgment 557, 47 N. E. 1068, 38 L. R. A. 829; Custer et as to benefits or damages shall be appealable

al. v. Holler et al., 160 Ind. 505, 67 N. E. 228 by either party as in civil actions to the Ap and authorities there cited. Of course, the pellate or Supreme Court.”

exercise by the court of its legal discretion At this point we are confronted with the

in granting an extension of time for filing insistence of appellee's counsel that the such objections will be open to review on clause of section 5 which provides that the

appeal. It follows, from the interpretation written objections shall be filed not later which we accord to the clause in question, than the first appearance of such defendant is

that appellee must be considered as having mandatory and wholly deprives or probibits waived all question in regard to the time the filing of such objections at a subsequent at which appellants filed their written objecday. Therefore it is contended that, as ap- ' tion by reason of its failure in any marner to

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