Fry v. Hoffman

54 Ind. App. 434 | Ind. | 1913

Lead Opinion

Lairy, J.

Appellant Marshall A. Pry, having entered into two separate contracts with the town of Newcastle for the improvement of portions of Broad Street in said town, sublet the excavating to be done under such contracts to appellees at the agreed price of twenty-five cents per cubic yard. After appellees had performed a part of the work under each contract a misunderstanding arose and the contractor refused to permit appellees to finish the work. Certain payments having been made, a dispute arose, appellees claiming a balance due and appellant Pry claiming that they were already overpaid. To secure the performance of each of the two contracts, appellant, Marshall A. Pry, gave bond upon which the other appellants were surety. These bonds were each payable to the State of Indiana, and were conditioned upon the faithful performance of the contract to which it applied, and upon the payment by the contractor of all debts incurred in the prosecution of the work including labor and material furnished. Appellees brought a suit on each of these bonds, making the bondsmen parties defendant. These two actions were consolidated by agreement and tried as one, resulting in a judgment in favor of appellees.

1. The first error assigned is that the court erred in overruling appellants’ separate and several demurrers to appellees’ complaint. There were two complaints filed, one in docket No. 3417 and the other in docket No. 3483. An examination of the record shows that no demurrer was addressed to the complaint filed under the former number and that the court made no ruling on the demurrers which were addressed to the complaint filed under the latter number. No question was saved for presentation by this assignment, and, as the question is not presented by an independent assignment of error, we cannot consider the sufficiency of the complaint.

2. 3. 4. The correctness of the ruling of the court upon tfie motion for a new trial is the only question properly raised by the assignment of errors. The first cause assigned and argued relates to the action of the court in overruling appellants’ motion for a change of venue from the county. The affidavit was filed on December 8, and the case was set for trial on the thirteenth day of the same month. The record shows that the motion was overruled upon the ground that the affidavit was not filed within the rules. The rule of the court upon which this action of the trial court was based is not set out in the bill of exceptions or otherwise made a part of the record. As all presumptions are in favor of the correctness of the ruling, we must presume that the action of the court was justified by the rule. Prom the briefs on file it appears that the rule required that affidavits for change of venue must be filed in such time as to allow five full days to intervene between the day on which the application is filed and the day set for trial. The word “between”, when used to definé a period of time bounded by two other periods, such as between two named days, excludes the days specified at the beginning and at the ending of the period; and the ordinary rule as to the computation of time by excluding one day of a period and including the other does not apply. Winans v. Thorp (1899), 87 Ill. App. 297; Weir & Co. v. Thomas (1895), 44 Neb. 507, 62 N. W. 871, 48 Am. St. 741; 1 Words and Phrases, “between.” It is clear that there were only four full days intervening between the eighth day and the thirteenth day of the month. The courts have power to adopt and enforce reasonable rules, not inconsistent with the laws of the State, regulating applications for change of venue. Anglemyer v. Blackburn (1896), 16 Ind. App. 352, 45 N. E. 483; Hamilton v. Miller (1889), 24 Ind. App. 617, 56 N. E. 923; Perdue v. Gill (1904), 35 Ind. App. 99, 73 N. E. 844.

5. Appellants on the day of the trial filed an affidavit for a continuance on account of an absent witness. The motion based on this affidavit was overruled and this ruling was assigned as a cause for a new trial. The affidavit does not show sufficient diligence on the part of appellants to obtain, the testimony of the witness. The affidavit shows that the witness was at Danville, Illinois, and that the reason affiant did not take his deposition was because he could not locate him until December 9. It is not disclosed that he made any inquiries or exercised any diligence to locate the witness prior to that date. The summons was served on the defendants on September 24, almost three months before the affidavit for a continuance was filed. The affidavit does not show that any of the defendants, during that time, had made any effort to locate the witness and to obtain his deposition. The showing as to diligence is wholly insufficient and the motion for a continuance was properly overruled.

We have considered all the questions properly presented by the record and briefs. We find no available error and the judgment is in all things affirmed.

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Rehearing

On Petition for Rehearing.

6. On petition for rehearing appellants complain of the failure of the court to pass upon the question of the sufficiency of the evidence to sustain the verdict. This question was not considered for the reason that it was not presented by appellants’ brief in accordance with the rules of this court. The petition for rehearing is overruled.

Note.—Reported in 102 N. E. 167; 103 N. E. 15. See, also, under (1) 2 Cyc. 989; (2) 3 Cyc. 294, 295; (3) 38 Cyc. 317; (4) 11 Cyc. 740, 741; (5) 9 Cyc. 143; (6) 2 Cyc. 1014, 1015. As to inclusion or exclusion of first and last days in computing time, see 49 L. R. A. 193; 15 L. R. A. (N. S.) 686.