66 Ind. App. 199 | Ind. Ct. App. | 1917
Lead Opinion
This was an action brought by appellee against appellants for the breach of a contract between appellee and appellant Wallace'for the construction of a dwelling house, and on a bond executed by appellant Wallace, as principal, and appellant company, as surety, given to secure the performance of such contract. The complaint is in one paragraph, on which issues were duly joined. A trial was had by a jury, which returned a verdict against appellants for the sum of $2,200, on which judgment was rendered. Appellants filed their motion for a new trial, which was overruled, and the proper exception reserved. Appellant Federal Union Surety Company, hereafter designated as the company, appealed and assigned errors as follows: (1) that the Court erred in sustaining appellee Schlosser’s demurrer to the amended third paragraph of appellant Federal'Union Surety Company’s answer; (2) that the court erred in overruling appellant Federal Union Surety Company’s motion for a new trial. Appellant Wallace not having assigned errors presents no question to this court for consideration.
The identity of the whole record depends upon the certificate of the clerk on appeal. Can it be said that such an important'matter, upon which the rights of litigants depend, can be based on mere hearsay evidence, as recited in the certificate under considera
The lack of knowledge on the part of the clerk as to the filing of such bill of exceptions may have appeared in the proceeding to obtain the writ of certiorari, in pursuance of which the second or amended certificate was filed, but in granting such writ this court did not assume to pass upon the sufficiency of such knowledge, but sought only to give appellants every reasonable opportunity to bring all appropriate matter into the record, so that the appeal might be determined on its merits, if possible. We therefore conclude that the evidence is not in the record, and any questions depending on it for determination cannot be considered.
The objection made by appellee that the transcript
The jury in making its first verdict evidently used the above form, after striking out certain parts thereof, and filling in the blank space with the words “Twenty Two Hundred,” so that such first verdict when returned read as follows: “We, the jury in the above cause, find for the plaintiff, Schlosser, and we further find against the defendant, The Federal Union Surety Company, and assess his damages at Twenty Two Hundred Dollars.” The court refused to receive such verdict, and after giving to the jury said instruction No. 15 directed it to retire for further deliberation. The jury afterwards returned the following verdict on which judgment was rendered, to wit: “We, the jury in the above cause, find for the plaintiff, Schlosser, against defendant, William L. Wallace, and assess plaintiff’s damages at Twenty
Appellant company contends in effect that said first verdict was a finding upon all the issues; that inasmuch as the verdict was silent as to appellant Wallace, it was an implied finding in his favor; that since it was sued as surety on a bond executed by its coappellant to secure the performance of a building contract, there could be no liability on its pa*rt without default by the principal in such bond; and since the verdict in effect found there was no such default, it would have been entitled to judgment, if such verdict had been received, and its rejection, therefore, was harmful error.
We cannot concur in appellant’s conclusion. A number of authorities from other states are cited in its support; but, whatever may be the rule in other jurisdictions, it has been expressly decided otherwise in this state, in the case of Childress, Admx., v. Lahe Erie, etc., R. Co. (1914), 182 Ind. 251, 105 N. E. 467, based, as we believe, on the greater weight of authority and the better reason. In that case appellant brought suit against appellee and its engineer, Patrick Haggerty, for damages for the death of her decedent by the negligence of the defendants in failing to give a signal on approaching a certain crossing. On the trial of the cause the jury returned the following verdict: “We, the jury, find for the plaintiff, and against the defendant, the Lake Erie and Western Railroad Company, and assess her damages at $6,000.00. And find for the defendant, Patrick Haggerty. ’ ’ This verdict, and the first verdict in the case at bar, as appellant would construe it, by reading into it the implied finding in favor of Wallace, are in sub
In that case the facts were such that the railroad company could only be liable if its engineer was liable, and in this case the facts are such that the appellant company can only be liable if the appellant Wallace is liable. The same question is therefore involved. In the Childress case, supra, the Supreme Court in the course of its opinion said: “By this verdict the jury found in effect that appellee company was liable in damages because the statutory signals were not given, while Haggerty, the engineer, was not liable because the proper signals were given. No other construction is possible under the averments of appellant’s complaint since it does not charge that it was the duty of any servant of appellee company, other than Haggerty, to give said signals, or that said company violated through any other servant the duty placed on it by the statute. Such a verdict is contradictory and absurd, and cannot be made the basis of a legal judgment. * * * As the case at bar comes to us the. general verdict is a nullity and without effect, while there is no special verdict unless the answers to interrogatories may be so construed. * * * Since the trial court had before it neither a general nor a special verdict of the jury on the issues of fact presented for its determination, any judgment covering such issues which the court might render would be wholly unauthorized by law and invalid. ’ ’
The fact that the ease cited involves the question of
There was no error in the action of the court in giving instruction No. 15 before requiring the jury to retire for further deliberation. We have found no error in the record which authorizes or requires a reversal of the judgment. Judgment affirmed.
Rehearing
On Petition foe Rehearing.
Petition for rehearing overruled.
Note. — Reported in 114 N. E. 875, 116 N. E. 759.