49 Ind. App. 254 | Ind. Ct. App. | 1911
This action was brought by appellee against appellant for dissolution of partnership and an accounting of the partnership assets. The court found for appellee, and rendered judgment against appellant for $607, from which this appeal is taken.
Appellant has assigned numerous errors, raised in different ways, but those relied on in the briefs, for reversal, relate to the refusal of the court to transfer the cause to the federal court, and to certain amendments which the court permitted appellee to make to his complaint.
The judgment in this case was rendered on the amended second paragraph of complaint, which, in substance, before amendment, alleged that in 1895 appellant and appellee entered into a partnership agreement to operate a hotel in
The original complaint was filed on September 14, 1907, and on September 21, 1907, appellant filed his verified petition to remove the cause to the federal court, on the ground of diverse citizenship, and tendered his bond therewith. The petition for removal averred facts showing that the amount in dispute was over $2,000, and that appellant was a resident of the State of Missouri.
Pending the ruling on this application, appellee withdrew his first paragraph of complaint, and by leave of court, over appellant’s objection, filed his second paragraph of complaint, which demanded less than $2,000. Thereupon the court denied the petition to transfer. In October following, by leave of court, appellee filed an amended first paragraph of complaint averring substantially the facts heretofore shown, but stating that appellee, in purchasing said hotel, furnished $2,000 in cash and conveyed eighteen acres of real estate of the value of $1,000; that, by the terms of the partnership agreement, the profits of the business were to be divided equally at the end of each month; that the profits of the first month amounted to $400. Several paragraphs of answers and replies were filed and the case was put at issue. Appellant moved for a trial by jury, and the court thereupon submitted to a jury certain interrogatories, which were answered by the jury for the guidance of the court.
These answers show that appellee put into the purchase
The jury returned answers to interrogatories on October 26, 1907, and on November 7, 1907, appellant again «filed his petition to transfer the cause to the federal court, which was overruled. Thereupon appellant moved that the court find the facts specially and state its conclusions of law thereon. Appellee then asked and was granted leave to amend his complaint to conform to the proof, and thereupon filed his amended second paragraph of complaint, which only differed from the original by averring, in substance, that appellee executed in the name, of Ella J. Bailey, for the use and benefit of appellee, his promissory note for $400 dated on or about October 23, 1907, which was due and unpaid ; that a copy thereof was not set out, because the note was in the hands of appellant, and, upon demand, he refused to surrender it to appellee; that said note was given to reimburse appellee for money invested in said hotel.
At the January term, 1908, the court filed a special finding of facts, the substance of whieh is as follows: That appellant and appellee, in 1895, formed a partnership to engage in the hotel business in Missouri, each to receive half of the net profits; that they began business on January 1, 1896, at Trenton, Missouri, and appellee invested therein $1,000 in cash; that on October 23, 1907, after a sale of the hotel business, they had a partnership settlement, by which appellee obtained a reconveyance of the eighteen acres of
Upon this finding, the court stated its conclusions, that the law is with appellee, and he is entitled to recover said amount from appellant. To these conclusions appellant excepted.
Black’s Dillon, Removal of Causes §15, says: “A party to a suit in a state court may, so far as concerns that particular litigation, waive his right to remove the same to the Federal Court. ® * * Parties may not go to trial on the merits, and take their chances on the result, and afterwards question the jurisdiction of the court ,on any ground which could be waived.”
By §3 of the act of congress of March 3, 1887, as corrected by the act of August 13, 1888 (25 Stat. 435, §3, 1 U. S. Comp. St. p. 510), it is provided that a party desiring to remove a cause from a state to the federal court must file his petition “at the time, or any time before the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff.” Desty, Removal of Causes §105s; Kansas City, etc., R. Co.
The court will construe the pleading as most clearly outlined by the facts stated, and, if possible, so construe it as to give full force and effect to all of its material allegations, and such as will afford the pleader full relief. Monnett v. Turpie (1892), 132 Ind. 482; Monnett v. Turpie (1892), 133 Ind. 424, 427.
Section 700 Burns 1908, §658 R. S., 1881, provides that no judgment shall be reversed “where it shall appear to the court that the merits of the cause have been fairly tried and determined in the court below.”
8. It has been held repeatedly by our Supreme Court and by this court, that when it affirmatively appears from the record and the evidence that the merits of the cause have been fairly tried and determined, the judgment will not be reversed. The facts of this case show, beyond question, that appellant is not harmed, and that he could not reasonably hope for a more favorable outcome if he obtained a new trial. Prom the facts disclosed by the record, it is doubtful if the partnership settlement found by the court would stand if an issue was so formed as directly to assail it, and this settlement alone, so far as the record discloses, limits the recovery to the amount of the judgment rendered. Shedd v. Webb (1901), 157 Ind. 585; Latshaw v. State, ex rel. (1901), 156 Ind. 194, 206; LaPlante v. State, ex rel. (1899), 152 Ind. 80, 85; Wortman v. Minich (1901), 28 Ind. App. 31; Orr v. Leathers, supra.
There is no available error shown by the record. Judgment affirmed.