49 Ind. App. 438 | Ind. Ct. App. | 1912
Hottel, J.
This was a suit brought by tbe Wassail Clay Company (hereinafter referred to as appellee) on a contractor’s bond for labor and materials furnished snch contractor.
The contractor was the Indianapolis Construction Com
In addition to asking judgment against said construction company and its surety, on said bond, for the amount due on account of labor and materials furnished to such contractor on its said contract, plaintiff asked that the city treasurer be enjoined from paying out any funds in his hands to which said construction company was entitled, that a receiver for such funds be appointed, and that such funds be applied to the payment of plaintiff’s claim.
Appellant filed a cross-complaint, asking the same relief except as to the money judgment against the contractor and its surety. The amended complaint was in two paragraphs, ■each of which was predicated on separate contracts and bonds. This amended complaint, and appellant’s cross-complaint alleged the insolvency of the construction company, that it had undertaken to make certain pretended assignments of its rights in the contract, and that the treasurer of the city had certain funds, in the form of money and bonds, in his hands which constituted an unpaid balance on the contract, and other averments essential and necessary as supporting the equitable relief prayed for.
Answers unimportant in their application to the question presented by this appeal were filed. After the issues were closed, the case was submitted to the court for trial, and it rendered judgment for the plaintiff against the Indianapolis Construction Company and the Aetna Indemnity Company for the sum of $666.45, without granting the equitable relief asked for in said complaint and cross-complaint, and also rendered judgment for costs for defendant Robinson, treasurer, against the plaintiff.
Appellant filed a motion for a new trial, which was over
The question, therefore, presented and to be determined by this court is: Which judge’s signature was necessary to the authentication of said bill of exceptions % If the signature of the regular judge was necessary to such authentication, and if he were the proper judge under the law to sign said bill, the presentation was in time; if, however, the judge pro ten. who tried the case and rendered the judg
The solution of this question depends on the time of the expiration of the appointment of said judge pro iem., and whether, under the statute providing for his appointment, he had jurisdiction of eases after the expiration of his appointment, where the trial was begun before him and not finished. The statute authorizing this appointment is §1483 Burns 1908, §1364 R. S. 1881, and that part which defines his “power and authority” reads as follows: “Such appointee shall have the same power and authority during the continuance of his appointment as a regularly elected judge of said court.”
The language just quoted limits the power and authority of such appointee to a period within his appointment. Iiis authority to act as such judge exists by virtue of the statute alone, and such authority cannot be extended beyond its provisions.
The term for which said Baker was appointed judge pro iem. in this case, as evidenced by his signature to said bill of exceptions, and by the other parts of the record, was during the absence of the regular judge, and was from June 18 to June 26, inclusive. At the expiration of this period, under his appointment his power and authority as such judge, in this and all other cases over which he had assumed jurisdiction, ceased. The court in which this case was pending continued, but the judge who tried the case was no longer its judge. He was therefore without authority to sign such bill of exceptions, and his signature thereto was unnecessary. The regular judge of the court at the expiration of said period again became the judge of said court, with power and authority over all matters pending before it, and thereby became the proper person to sign said bill of exceptions. This we think is conclusively settled by our
In this connection appellant insists that the complaint proceeds on a theory demanding and requiring the equitable relief prayed, and that the cause should have been tried on that theory and the judgment rendered accordingly. On
We will consider appellant’s last contention first. The effect of the holding in the ease just cited is “that a complaint must proceed upon a definite theory, that the cause must be tried on the theory constructed by the pleadings, and such a judgment as the theory selected warrants must be rendered and no other or different one.” In said case the appellee assigned cross-errors, and asked the court to grant a relief, additional to that granted by the lower court and different from that warranted by the pleadings. In the case at bar, appellee has assigned no cross-errors, has asked no additional relief, nor has it obtained any relief which can be said to be unwarranted by the pleadings. The only thing that can be said in the case at bar is that the appellee has not obtained the full relief to which its complaint would indicate that it is entitled, but its relief, so far as granted, was fully authorized by the pleadings.
Granting that the relief adjudged appellee was less than that to which it was entitled under its pleadings, it is.making no complaint on account thereof. Therefore, the question this court must determine is whether because of the fact that appellee in its complaint stated facts which entitled it to such equitable relief, and because of the fact that appellant in a cross-complaint averred substantially the same facts and asked the same relief, appellant is in a position to ask a reversal of the judgment on account of the failure of the court to grant such relief.
In the determination of this question we think that the mere fact that appellee averred the essential facts entitling it to such relief, and in its prayer asked for such relief, lends no aid whatever to appellant’s contention that appellee’s judgment should be reversed. We say this because, as before stated, the relief granted was entirely within the scope and theory of the complaint, and its only frailty, so far as appellee was concerned, was its inadequacy, and cer
Whether the trial court should have granted the equitable relief asked in said cross-complaint, and appointed a receiver for said construction company, and impounded the money and funds in the hands of the city treasurer, and ordered them applied to the payment of the claim of plaintiff, and others in like situation, before they were permitted to pursue the surety company, as appellant insists, depended not upon such pleading alone, but also upon the proof offered in support thereof.
It is conceded by appellant that the entire amount of money shown by the evidence to have been in the hands of the city treasurer was seventy-two cents. The amount of bonds in said treasurer’s hands was $383.12. It is also conceded by appellant that some of these bonds were held by the city as a guaranty fund to secure the proper maintenance of the improvement; at least $265.32 of said bonds— and under one view of the evidence all of them — were so held.
It was further shown that such bonds so held as a guaranty fund by the city were to be held by it for a period of at least five years. In this case the construction company very shortly after getting its contract, and before the assessments were approved, made an assignment thereof, assigning bonds (to be issued), assessment “rolls, money, and everything else,” to the “Home Bond Company,” to obtain the money to finance the improvement. Under such arrangement payments were all made to such assignee bond company, and it could, upon substituting or depositing other satisfactory bonds, withdraw those held by the city as such guarantee.
The evidence also shows that these bonds, while being held
It will be seen from the statement of the facts that under one view of the evidence the city treasurer held only seventy-two cents, free from the claim of the city, as indemnity, which the court could have ordered applied at once upon appellant’s claim, and at most there was but said sum plus $117.80 in bonds free from said claim, which could have been so turned over at once, and whether this sum should have been so ordered turned over depended on whether the appellant’s right and claim thereto was superior to that of the Home Bond Company, who held an assignment thereof, and was not a party either to the original complaint or to appellant’s cross-complaint.
If appellant could not tender a pleading which would compel the litigation of said question with the real party interested in, and to be effected thereby, it would seem that it should not, without such pleading, be permitted to do indirectly what it could not do directly.
"We have been unaided in our consideration of the merits of this question by any brief from appellee, and have considered the question presented on the assumption that the averments of the cross-complaint, as to the money and funds, including bonds, held by the city treasurer, were connected with the contracts and bonds sued on in the complaint, but the record shows some discrepancy between the contracts and bonds sued on and those set out in the cross-complaint. The record shows an amended complaint in two paragraphs, filed after the cross-complaint was filed, and the contract and bonds filed as an exhibit with each of these paragraphs seem to be different from those filed with the cross-complaint. This would make appellant’s contention, that the equitable relief which it insists the judgment should have contained, rests solely on the averments of the complaint and the proof thereunder.
Under either view of the ease, we think that the equity of the case requires an affirmance of the judgment.
Judgment affirmed.