112 Ind. 390 | Ind. | 1887
On the 9th day of February, 1887, the appellees appeared herein and moved this court, in writing, “to set aside the submission of the above entitled cause and dismiss the appeal herein, for the reason that no marginal notes have been made on the transcript in this cause, as required by rule No. 19 of this court.” Rule 19 has been in force for many years. It is declared therein, inter alia, that the appellant “ shall also cause marginal notes to be placed on the transcript in their appropriate places, indicating the several parts of the pleadings in the'cause, the exhibits, if any, orders of the court, and the bills of exceptions; also, where the evidence is set out by deposition or otherwise, the names, of the witnesses.” The rule itself prescribes no penalty for the failure of an appellant to comply therewith. But the rule is a reasonable one and is easily complied- with, and, in many cases, an observance thereof by the appellant will greatly facilitate the labors of this court. In some instances, this court of its own motion has set aside the submission of .a cause for the want of marginal notes on the transcript. Mitchell v. American Ins. Co., 51 Ind. 396; Trueblood v. Nicholson, 52 Ind. 419. In other cases, the court of its own
Of course, the rule is one which the appellant ought to comply with in every case; but, in the event of non-compliance therewith, the action of this court must be governed by the facts shown by the record of each particular case. Where, as here, the transcript is brief and the judgment below is called in question chiefly upon the sufficiency of the pleadings, and it appears that the merits of the cause had been fully discussed in the briefs of counsel, as well of the appellees as of appellants, some time before the filing of the motion to dismiss, we are of opinion that the appeal ought not to be dismissed. Appellees’ motion to dismiss the appeal herein is overruled.
Errors are assigned here by appellants, the defendants below, which call in question (1) the overruling of their separate demurrer to the complaint herein, (2) the sustaining of a demurrer to the third paragraph of their joint answer, (3) the rendition of judgment against them over their objection and exception, and (4) the overruling of their motion for a. new trial.
This suit was brought by appellee Doerman and sixteen other named persons, for themselves, and for all other laborers who were creditors of the late firm of C. L. Olds & Co., and wished to come in and were willing to contribute to the expenses of this action, as plaintiffs, against appellants Charles. L. Olds and William McLachlan, late partner’s under the firm name of C. L. Olds & Co., and John H. Bass and Henry G. Olds, as defendants. In their complaint, appellees alleged that, prior to the 26th day of February, 1885, appellants Charles L. Olds and William McLachlan were partners in the manufacture of engines, boilers, castings and machinery, under the firm name of C. L. Olds & Co., in the
Appellants Bass and Henry G. Olds separately demurred to appellees’ complaint herein for the following grounds of objection, namely: (1.) Because the complaint did not state facts sufficient to constitute a cause of action. (2.) Because of non-joinder of parties, in this, that alUpersons claiming to have or hold any like liens with those of plaintiffs should be made parties to this action. And, (3.) Because of misjoinder of causes of action, in that there did not exist any joint cause of action in favor of plaintiffs.
This demurrer was overruled by the court below, and to this ruling appellants Bass and Henry G. Olds at the time excepted. This ruling is the first alleged error of which appellants’ counsel complain in this court, and it presents for our decision the following question, namely : Are the facts stated in the complaint herein sufficient to constitute a cause of action in favor of the appellees and against the appellants Bass and Henry G. Olds, or either of them, or against the property described therein, in their hands, of the late firm of C. L. Olds & Co. ? .
It is apparent from the averments of their complaint that appellees have endeavored to state therein their cause of action, within the purview and meaning of the provisions of an act entitled “An act to provide for the security and payment of laboring men and mechanics,” approved March 29th, 1879, and in force since May 31st, 1879. This act contains a single section, known as section 5206, R. S. 1881, and reads
By this statute it is manifest that the General Assembly intended to provide that the laborers or employees of any company, corporation, firm or person engaged in any manufacturing or mechanical business, or in the construction of any work or building, to whom debts may be owing by or from their employer or employers, by reason or on account of their labor or employment, shall be preferred creditors of their employer or employers, and the debts so owing to them, to an amount not exceeding fifty dollars to each employee, for work or labor performed within six months next preceding the happening of one or more of the following events, shall be considered and treated as preferred debts, and shall be first paid in full, etc., namely:
1. When the property of such employer or employers shall be seized upon any mesne or final process of any court of this State.
2. When the business of such employer or employers shall be suspended by the action of his or their creditors. Or,
3. When the business of such employer or employers shall he put into the hands of an assignee,-receiver or trustee.
Appellees showed very clearly by the averments of their complaint that the business of their employers, the manufacturing firm of C. L. Olds & Co., by the action of their creditors, Bass and Henry G. Olds, the appellants herein, was entirely suspended, and that such firm, for the purpose of preferring Bass and Henry G. Olds, conveyed and transferred to them all the property of the firm and all the individual property of the members of such firm. We think that theseaverments sufficiently showed that the business of C. L. Olds- & Co. was “suspended by the action of creditors,” within the meaning of those words as used in the statute. Appellants’' counsel insist that when the statute speaks of the suspension of business by the “ action of creditors,” it means a suspension of business resulting from a legal action, instituted by the creditors, which the debtors were powerless to resist, and not from the voluntary action of creditors without resort to law, and with the debtors’ concurrence, or, at least, acquiescence, in such action.
This interpretation of the statutory provision quoted is entirely too narro av and forced to meet Avitli our approval. When it is shown that the business of the employer has been suspended by any action of the creditors, whether Avith or without the consent of the failing or insolvent debtors, a case is made by the laborer or employee, avc think, AAdiich to that extent comes Avithin the meaning and intention of the statute quoted. Even if the action of the creditors, Bass- and Henry G. Olds, Avhich led to the suspension of business by the manufacturing firm of G. L. Olds & Co., Avas caused
When, therefore, appellants Bass and Henry G. Olds, with such knowledge on their part, accepted the conveyance and transfer, by the failing or insolvent firm of C. L. Olds & Co., of all the property of such firm, and took possession of such property, upon no other consideration therefor than the payment of the pre-existing and non-preferred indebtedness of the firm to such appellants, it must be held, we think, that appellants own and hold such property subject to the payment of the preferred debts so owing to appellees as the laborers and employees of such firm, to an amount not exceeding fifty dollars to each employee. Warren v. Sohn, ante, p. 213, and cases cited.
Upon the whole case, as presented by the record now before us, we are of opinion that appellees’ suit herein was well brought, that their complaint stated sufficient facts to show that they were each entitled to the equitable relief they demanded against the firm property of C. L. Olds & Co. in the hands of the appellants, and that the trial court committed no error in the cause which authorizes or requires the reversal of the judgment herein.
The judgment is affirmed, with costs.