Summary
holding court lacked jurisdiction to consider complaint brought in name of nonexistent entity
Summary of this case from The Health and Hosp. Corp. of Marion Cnty. v. DialOpinion
No. 17,879.
Filed October 5, 1949. Rehearing denied November 4, 1949.
1. PARTIES — Plaintiffs — Persons Who May or Must Sue — Right to Maintain Action — Not Legal Entity. — Where an action was brought by "St. Joseph County Home" against an estate to recover for care of decedent at public expense, it lacked the right to sue because it was not a legal entity. Burns' 1933, § 52-142. p. 439.
2. PARTIES — Plaintiffs — Persons Who May or Must Sue — Persons Expressly Authorized by Statute — Others Precluded. — The St. Joseph County Home, even if it were a legal entity, could not maintain an action against an estate for reimbursement for care of deceased at home at public expense, because, when a statute creates a cause of action and designates who may sue, none but those designated have the right to institute suit. Burns' 1933, § 52-142. p. 439.
3. PARTIES — Defects, Objections, and Amendment — Want of Capacity or Interest — Necessity of Objection — Right to Object Not Waived by Failure to Raise Question by Demurrer or Answer. — Where St. Joseph County Home, which was not a legal entity, brought an action against an estate for reimbursement for care of deceased at home at public expense, the right to question its right to maintain such action could not be waived by failure of administratrix to question it by demurrer or answer, because such objection was not merely one of capacity to sue which is waived under statutes. Burns' 1946 Replacement, §§ 2-1007, 2-1011. p. 440.
4. PARTIES — Defects, Objections, and Amendment — Want of Capacity or Interest — Means Legal Disability and Not Lack of Existence. — Want of capacity has reference, not to the existence of a plaintiff, but to legal disability, such as infancy, mental incompetency, and the like. p. 440.
5. PARTIES — Plaintiffs — Persons Who May or Must Sue — Capacity and Interest — Must Have Legal Existence and Capacity. — A party plaintiff must have an actual legal existence and must in addition thereto have the legal capacity to sue. p. 440.
6. PARTIES — Defects, Objections, and Amendment — Want of Capacity or Interest — Lack of Legal Capacity May Be Waived — Legal Existence Cannot Be Waived. — The lack of legal capacity to sue may be waived under the statutes, but a suit brought in the name of a single non-existent plaintiff is a mere nullity, and the right to object cannot be waived. Burns' 1946 Replacement, §§ 2-1007, 2-1011. p. 440.
7. APPEAL — Presentation in Lower Court of Grounds for Review — Parties — Capacity or Right to Sue — Plaintiff Not Legal Entity — Defect Jurisdictional — Objection Can First Be Raised on Appeal. — Where plaintiff was not a legal entity, the defect in the party plaintiff was jurisdictional and could be raised for the first time on appeal, because a complaint filed in name of non-existent plaintiff would not activate the jurisdiction of court, and it would be a case without a plaintiff. p. 440.
8. APPEAL — Determination — Reversal — Technical Defects — Parties — Plaintiff Not Legal Entity — Defect Is Jurisdictional and Fatal to Maintenance of Action. — Where plaintiff was not a legal entity, such defect was jurisdictional and fatal to the maintenance of the action, and such defect could not be considered immaterial under statutes which provide that judgments shall not be reversed for technical defects or errors in form. Burns' 1946 Replacement, §§ 2-1071, 2-3231. p. 441.
From the St. Joseph Probate Court, J. Clifford Potts, Judge.
Action by the St. Joseph County Home against Betty L. Miller, Administratrix of the Estate of Jerome Miller, deceased, for reimbursement for care of decedent at such home at public expense. From a judgment for plaintiff, defendant appeals.
Reversed and remanded. By the court in banc.
Charles Davis, of Mishawaka, for appellant.
Irving A. Hurwich, of South Bend, for appellee.
One Jerome Miller was kept and cared for at public expense in the St. Joseph County Home for several years ending in June, 1948, when he died. Thereafter a claim was filed against his estate on behalf of "St. Joseph County Home" to secure reimbursement "for his keep." See Acts of 1923, ch. 41, amended by Acts of 1945, ch. 270, Burns' 1933, § 52-142.
From an adverse judgment the Administratrix appeals.
St. Joseph County Home is not a legal entity of any kind. It is merely the name of a place. It therefore lacks the right or power to maintain an action. 47 C.J., Parties, § 16, et seq.; 1, 2. 39 Am. Jur., Parties, § 9. Cf. Karges Furniture Co. v. Amalgamated, etc., Union (1905), 165 Ind. 421, 75 N.E. 877; Turner v. Henshaw, Rec. (1927), 86 Ind. App. 565, 155 N.E. 222; Faultless Caster Corporation v. United Workers (1949), 119 Ind. App. 330, 86 N.E.2d 703. And even if it were a legal entity, it could not maintain this action, for when a statute creates a cause of action and designates who may sue, none but those designated have the right to institute the suit. 39 Am. Jur., Parties, § 9; Ryan et al. v. Ray et al. (1886), 105 Ind. 101, 4 N.E. 214; Pavey v. Braddock (1908), 170 Ind. 178, 84 N.E. 5; Princeton Coal, etc., Co. v. Lawrence (1911), 176 Ind. 469, 95 N.E. 423, 96 N.E. 387.
We cannot agree that the question here is merely one of capacity to sue, which is waived under the provisions of Burns' 1946 Replacement, §§ 2-1007 and 2-1011 unless raised by 3-5. demurrer or answer. Want of capacity has reference, not to the existence of a plaintiff, but to legal disability, such as infancy, mental incompetency, and the like. Ward v. Petrie (1898), 157 N.Y. 301, 51 N.E. 1002. A party plaintiff must have an actual legal existence and he must in addition thereto have the legal capacity to sue. 39 Am. Jur., Parties, § 12, p. 865. Courts sit to settle actual disputes between existent parties. No right of action resides in a non-existent plaintiff. "The two things are essentially different in their natures, and in their results; the right of action is of the substance, the capacity to sue is necessary only as against a dilatory objection." Ritter v. Ritter (1942), 219 Ind. 487, 38 N.E.2d 997.
The lack of legal capacity to sue may be waived under the statutes. A suit brought in the name of a single 6. non-existent plaintiff is a mere nullity. 47 C.J., Parties, § 24.
A complaint filed in the name of a non-existent plaintiff will not activate the jurisdiction of the court. Such a case is one without a plaintiff or a defendant. The defect is therefore 7. jurisdictional, and can be raised for the first time in this court. "The right of jurisdiction in a court over a subject-matter may exist, but its valid exercise depends wholly upon its being invoked by one who is entitled under the law to set it in motion. `The power to hear and determine a cause is jurisdiction; and it is coram judice whenever a cause is presented which brings this power into action. But before this power can be affirmed to exist, it must be made to appear that the law has given the tribunal capacity to entertain the complaint against the person or thing sought to be charged or affected; that such complaint has actually been preferred; and that such person or thing has been properly brought before the tribunal.'" Lowery v. State Life Ins. Co. (1899), 153 Ind. 100, 54 N.E. 442.
The defect is fatal to the maintenance of the case. It is not such a defect or imperfection as can be considered 8. immaterial under the provisions of Burns' 1946 Replacement, §§ 2-1071 or 2-3231.
In this view of the situation, we consider it unnecessary and perhaps improper to discuss other questions raised.
Reversed and remanded with instruction to dismiss the proceeding.
NOTE. — Reported in 87 N.E.2d 886.