66 Ind. App. 105 | Ind. Ct. App. | 1917
This is a suit on two bonds executed by appellant to the board of commissioners of Wells county, Indiana, pursuant to §7723 Burns 1914, Acts 1905 p. 556, in connection with the improvement of certain highways in that county. Appellee furnished gravel which was used in the construction of the roads, and this action was brought to recover the price of said gravel.
The complaint is in four paragraphs. Demurrers to the first and second and to the third and fourth paragraphs, respectively, were overruled and the issues were closed by general denial. A demand for jury trial'was withdrawn and a trial by the court resulted in a judgment in favor of appellee.
' Numerous errors are assigned but the controlling questions are: (1) Can a materialman recover on a bond executed for the purpose and conditioned as the bonds in suit for material furnished and used in the construction of these roads? (2) Did the court
The bonds in question were executed pursuant to the requirement of §7723, supra, and accepted by the board. The contracts were let and the improve-' ments completed thereunder. The same principle of law here involved was involved in each of the above cases and further discussion is deemed unnecessary. As particularly applicable, we quote the language of Judge Mitchell in Faurote v. State, ex rel., supra, 467: “The provisions of the statute became part of the bond, giving to it the same force and effect as if they had been written therein. They constitute the contract upon which the sureties have a right to stand, and by which their liability is to be determined. By this contract the sureties guaranteed that the contractor should promptly pay all debts incurred by him, and it gave to any laborer, material-man, or person furnishing board to the contractor, and having a claim against him therefor, a right of action on the bond.” This case was followed and approved in State, ex rel. v. Rowles, supra.
The affidavit upon which the change of venue was requested and refused was filed on June 28, 1915, the day on which the cause was set for trial and, omitting caption and signature, reads as follows: “Comes now Charles R. Haller, attorney for the defendants in the above entitled cause and makes
On the same day, without objection by appellant, appellee filed “his counter-showing and objections to the change of venue,” in which he set out a copy of rule 8 of the Huntington Circuit Court as follows: “Applications for change of venue, either from the judge or from the county, shall be made to the court at or before the time the cause is set for trial and not later, unless the cause for the change shall come to the knowledge of the party asking such change after said time, which shall be shown in the affidavit asking for the change” together with other facts, in substance, that the regular setting of causes for trial during the April term, 1915, of the Huntington Circuit Court was had on April 19,1915, at which time the cause at issue was set for trial on june 16, 1915. On June 15, appellant asked and obtained a continuance on account of an absent witness to June 28,1915. On the latter date appellee was present in the courtroom with his attorney and witnesses ready
Section 422 Burns 1914, §412 B. S. 1881, provides: ‘ ‘ The court in term, or the judge thereof in vacation, shall change the venue of any civil action upon the application of either party, made upon affidavit showing one or more of the following causes: * * * Third. That the opposite party has an undue influence over the citizens of the county, or that an odium attaches to the applicant, or to his cause of action or defense, on account of local prejudice. ’ ’
Note. — Reported in 117 N. E. 874. Right of one furnishing labor or material to sue on bond given by contractor to property owner, Ann. Oas. 1916A 754.