13 Ind. App. 424 | Ind. Ct. App. | 1895
The appellants, Davis and Rankin,
Opposite the name of each subscriber is set forth the number of shares subscribed by him and the amount of stock to be issued to him after incorporation. These shares were $100 each, and no subscriber took more than one share, except J. D. McMillan, who subscribed for five shares. It is averred in the complaint that Davis and Bankin completed the butter factory as required, and that the subscribers accepted the same, and paid thereon the sum of $3,400 of the contract price, leaving due the appellants the sum of $350, with interest. The complaint also declares upon a mechanic’s lien and asks to have the same foreclosed. There was no demurrer to the complaint. The appellees answered in several paragraphs, and the appellants filed separate demurrers to the fourth and sixth paragraphs of the answer, each of which was overruled and an exception was saved to the ruling in each instance. The errors assigned relate to the ruling upon the demurrers to the fourth and sixth paragraphs of answer, in striking out some of the paragraphs of reply, and in overruling the appellants’ motion for a new trial.
At the threshold of this case we are met by the contention of appellees’ counsel that the complaint itself is fatally defective, and that the appellants’ demurrer should have been carried back and sustained to the com
The complaint and contract declared upon are similar to those in Davis & Rankin B’ld’g. & Mfg. Co. v. Booth, 10 Ind. App. 364; Davis & Rankin B’ld’g. & Mfg. Co. v. Hillsboro Creamery Co., 10 Ind. App. 42; Davis & Rankin B’ld’g. & Mfg. Co. v. McKinney, 11 Ind. App. 696. In the present case one of the defendants, the North Vernon Creamery Company, is not a subscriber to the contract, and the complaint utterly fails to show any liability on its part. There is no cause of action shown against any of the appellees severally, as the complaint does not show any individual defendant to be in default on his subscription.
The complaint is bad also as a complaint to foreclose a lien, for the reason that the transcript fails to show that the notice of intention to hold a lien or a copy of such notice was filed with the complaint. At the end of the. complaint in the transcript, the clerk has made a note in red ink, as follows: u See mechanic’s lien set out, beginning on page 164, line 23 and ending page 167, line 24” The page to which the clerk refers contains a statement of the introduction in evidence of the original mechanic’s lien against the creamery property, and filed in the recorder’s office of Jennings county, Indiana, which mechanic’s lien is in the words and figures, to-wit: Then follows the notice as introduced in evidence. The rule of pleading in such cases under our practice is that where it is averred that a copy of the instrument declared on is filed with the complaint and an instrument corresponding with the one described in the pleading is found in the transcript in its appropriate place, the complaint is sufficient in this particular ; but where no copy of the instrument appears in the record as accompanying the complaint, the latter is insufficient,
The complaint failing to show a personal joint liability and being insufficient as an action to enforce a mechanic’s lien, is not good for any purpose, and had a demurrer been addressed to it the court would have been in duty bound to sustain the same.
The appellants obtained a small judgment in the court below. They bring this case here on appeal, insisting that their judgment should have been for a larger amount. But under the averments of their complaint, appellants were not entitled to any relief in this action, and therefore any intervening error is harmless and must be disregarded in the consideration of and as applied to the facts disclosed by the record in this case. Davis & Rankin B’ld'g. & Mfg. Co. v. Booth, supra;
Judgment affirmed.