162 Ind. 258 | Ind. | 1903
Lead Opinion
Suit by appellees .to foreclose mechanic’s lien. It is averred in the complaint that the defendants are indebted to the plaintiffs in the sum of $478 for building material sold and delivered to the defendants by the plaintiffs, and work and labor performed at the defendants’ special instance and request, which is specifically set forth in a bill of particulars filed with the complaint; that the last of such materials was furnished and said work and labor performed on June 25, 1900; that said material and work and labor were furnished by plaintiffs to defendants and were used by them to erect a brick building on certain described real estate in Posey county; that plaintiffs caused notice of lien to be recorded, etc. Louis Lengelsen made default, and appellant Edward Lengelsen answered by general denial. Trial by court, finding, and personal judgment against Louis, and foreclosure of lien against both on the real estate described in the complaint.
Edward Lengelsen alone prosecutes this appeal. Pie assigns for error: (1) The insufficiency of the complaint to constitute a cause of action; (2) the overruling of specification three of his motion to modify the judgment; and (3) the overruling of his motion for a new trial.
The first assault upon the complaint is made in this court. At this late date it is incumbent upon the appellant to point out some infirmity in the complaint that is incurable by the presumptions that arise from the court’s finding against him, from the overruling of his motion to modify the judgment, and the overruling of his motion
Appellant admits that the complaint is good so far as to support a personal judgment, but argues that the court’s finding that he was not liable to a personal judgment is equivalent to a finding that he made no contract for the materials and work and labor sued for, and without a contract and personal liability there can be no lien, except Avhen the plaintiff sues as a subcontractor, in which event his complaint must show that fact, and that there was a contract between the principal contractor and the defendant, and that something is due the plaintiff from his employer. By this argument appellant seeks to place himself in a better situation than he confessedly would have been in if he had demurred to the complaint in the court beloAV. The complaint charges against appellant and his brother Louis a joint liability both to a personal judgment and lien on the property described, and, because appellant succeeded in his defense as to a personal liability, it by no means follows that his property was not justly chargeable by some agreement or principle of equitable estoppel. The character of the proof has nothing to do with the sufficiency of the complaint. So far as the foundation of the action is concerned, it must stand or fall upon its own merits. The complaint- is sufficient to support the proceedings and judgment constructed upon it.
It is insisted by appellees that there is no further question presented, because the evidence upon which all the
■ There is no pretense that the bills were actually presented to the judge within the time allowed, but appellant insists that, having been granted a specified time in which to prepare and present them, and having' prepared them and done all in his power to present them within the limit, he should not be deprived of their benefit by the judge so absenting himself from the State that his signature could not be obtained. The argument is not without force if addressed to the lawmaking body, but we have no power
Under the common law the court had no power to allow a bill of exceptions after the term, and the power being conferred by statute must be exercised as the statute directs, or it amounts to nothing. The limits for the completion of the record in every case must be determined not later than the term at which final judgment is entered, or the time of ruling upon the motion for a new trial. After that time the court is destitute of authority to act, and has then no more power to extend the time for presenting and filing a bill of exceptions previously fixed than he has for granting it then originally. So the question before us is one of power, rather than one of sufficiency of reason or excuse for not presenting the bill in time. It has long been held that the absence of the judge from
At the next following term appellant, by motion reciting the facts concerning the preparation of the bills within the time allowed, -and the impossibility of presenting to and procuring the signature of the judge on account of his-absence from the State, moved the court to enter then over his signature the presentation of the bills under date of May 13, 1901, which motion was overruled by the court. This proceeding is brought into the record by a supplemental transcript, and error is assigned upon the overruling of said motion. The ruling of the court was correct. See Kirby v. Bowland, supra; Driver v. Driver, 153 Ind. 88. It must, therefore, be held that the bills of exceptions are not in the record.
Though the evidence is not properly before us, we have nevertheless examined it, and find that the judgment would have to be affirmed if the evidence were properly in the record. It appears therefrom that at the time the land was purchased it was perfectly understood by both that the sole purpose of the purchase by appellant was to assist his brother in establishing himself in the saloon business; also that his brother had recently failed in business in the commitnity, and was financially unable to start anew without help. Both believing that this particular tract, being at the intersection of three roads, would be an advantageous place for a saloon, it was mutually, but verbally, agreed, that appellant should buy the land and turn it over to his brother, who was to construct thereon a '¡suitable building, and pay appellant a ground rent equal
It is an ancient principle of equity that, where one of two persons must suffer from the act of a third, he must be the sufferer who puts it in the power of the third to inflict the injury. Erom this principle has sprung the well-established rule that one may not stand by without objection and see another in good faith improve and enhance the value of his property, and then hold onto such benefits without paying for them. Powers v. Town New Haven, 120 Ind. 185, 191; DePauw Plate Glass Co. v. City Alexandria, 152 Ind. 443; Ross v. Stackhouse, 114 Ind. 200, 205; Thompsons. Shepard, 85 Ind. 352; Greene v. Smith, 57 Vt. 268. Llere appellant did more than stand by. He purchased the land and purposely placed it in the possession of his brother for the erection of a business house thereon, well knowing that his brother had but recently failed, and was unable to reestablish himself in business without financial assistance. Furthermore, appellant had knowledge of the character of the building under construction, furnished his brother $100 to make a payment thereon, and thus with full knowledge and active coopera
Judgment affirmed.
Rehearing
On Petition eor Rehearing.
Appellant, in support of his-petition for a rehearing, very earnestly contends that we erred in holding that his bill of exceptions containing the evidence was not properly in the record. He relies upon the maxim, “Actus curia? neminem grambit ” to protect him against the loss of his bill of exceptions by reason of the absence of the trial judge from the State when he, within the time allowed, did all he could to present the bill for settlement. The pith of his argument is that a court will not be permitted to throw a litigant off his guard by granting him a time beyond the term to prepare a bill of exceptions, and then defeat the privilege by absenting himself from the State until the time has expired. We have no disposition to deny the justness and reasonableness of the maxim invoked, to wit, “an act of the court shall prejudice no one,” and will unhesitatingly give the principle force and effect in a case where it applies, and we have authority to do so. It is doubtless the law that a litigant who has been awarded time for a bill of exceptions, and who has successfully completed his bill within the time, and who has been diligent in its preparation and presentation, should be afforded an opportunity to present it, and should not be deprived of the bill by the absence of the trial judge from the State. State, ex rel., v. Dyer, 99 Ind. 426; Fechheimer v. Trounstiene, 12 Colo. 282, 20 Pac. 704; Stonesifer v. Kilburn, 94 Cal. 33, 29 Pac. 332.
To take cognizance of a bill of exceptions that shows npon its face to have been created in disobedience of the statute would be to hold that we have discretionary power to dispense with the law whenever we deem it proper to do so. In such cases, therefore, the only way for an aggrieved party to get his exceptions into the record is to procure the insertion of the proper date of presentation nunc pro tunc, and thus send up on appeal a bill fair upon its face. Rigler v. Rigler, supra; Kirby v. Bowland, 69 Ind. 290; Walton v. United States, 9 Wheat. 651, 6 L. Ed. 182; Ferris v. Commercial Nat. Bank, 158 Ill. 237, 239, 41 N. E. 1118; West Chicago St. R. Co. v. Morrison, etc., Co., 160 Ill. 288, 43 N. E. 393; Ewbank’s Manual, §31.
And if a party is able to show that he has been diligent in the preparation and presentation of his bill, and in good faith and in due season had his prepared bill at the court, office, residence, or other place within the judicial circuit where the judge might reasonably be expected to be, and was prevented from presenting the same by reason of the absence of the judge from the State or judicial circuit, the act is such a presentation of the bill, if promptly presented to the court upon his return, as will authorize the latter, upon notice and motion, to insert nunc pro tunc the date when the presentation was defeated by his absence. Davis v. Patrick, 122 U. S. 138, 7 Sup. Ct. 1102, 30 L. Ed. 1090. The right, however, rests upon diligence, and upon the fact that the exceptor has done all he reasonably could do to secure the prompt approval of his exceptions. And whether he has been diligent or not must be determined by the sound judgment of the presiding judge upon the facts of the particular ease. Here appellant was allowed sixty days from March 15th in which to prepare and file
In Daugherty v, Western Union Tel. Co., 61 Fed. 138, the answer in an application for removal was due February 13th. On that .day the defendant’s attorney, residing in an adjoining county, left home for the place where the court was held, by a passenger-train which was due to arrive at 10 o’clock a. m,, and which was only prevented by a very unusual snowstorm, with' respect to which, Baker, J., said: “The failure to start for the place where the court was sitting until the day when the answer was due was such an act of negligence as to defeat the right of removal, withoixt regard to the delay occasioned by the storm.”
Bill of exception number one, based on a motion to modify tlie judgment, occupies two written pages of the record, and number two, containing the longhand manuscript of the evidence, embraces sixty typewritten pages. Because sixty days were'granted did not excuse appellant from promptly and diligently proceeding with the preparation and presentation of his bills with as much dispatch as circumstances would reasonably allow. He could not be held blameless if he negligently postponed their preparation or presentation to the very end of the period.
It is not shown that it would require anything like sixty days for appellant’s attorney to prepare bill number one, or for the stenographer to write out the evidence. There were thirty-six days in which to accomplish the work before the judge left home. The judge was a special judge, resided in another county, and had no official or other known reason to keep him at home or in the circuit. There was no correspondence with the judge to ascertain whether he would remain at home to the end of the sixty days. Appellant might have had timely notice of the judge’s intended absence from the State, and might have had
The court, from the known facts and the evidence before it, decided that appellant was not entitled to have his bills signed nunc pro tunc, and refused so to sign them. The conclusion thus reached in the nunc pro tunc proceeding was a judicial judgment upon the evidence before the court, and is impeachable on appeal only as ordinary judgments of the court.
The record shows that what purports to be bills of exceptions were signed by the judge twenty days after the expiration of the time granted therefor, to wit, June 4, and when he had no jurisdiction of the subject-matter, and no power to impart validity to the documents as bills of exceptions. They must, therefore, be regarded as nullities, and as serving no purpose in the record.
The petition for a rehearing is overruled.
