No. 2,142 | Ind. Ct. App. | Jun 1, 1897
Appellants brought suit against the appellee to recover damages for the breach of a written contract, and also upon an account for work and labor done by appellants, and materials furnished, and money paid them for the appellee. An affidavit for an attachment was also filed upon the filing of the complaint.
The first and fourth paragraphs of the complaint are substantially the same, and seek damages for an alleged breach of the written contract, which is filed as an exhibit with each paragraph.
The second paragraph is based upon an account for work and labor, and with it is filed a bill of particulars.
To this complaint the appellee filed a general denial, a plea of set-off to the second paragraph, and a counterclaim against the appellants in four paragraphs.
The first paragraph of the counterclaim makes the contract filed with the complaint an exhibit, and alleges that the appellee had furnished the appellants each item of machinery and property described in the contract, and that all the stipulations in the contract had been performed by the appellee; that for the machinery and property furnished, the appellants were indebted to the appellee in the sum of $1,100, and that for other property furnished appellants they were indebted to the appellee in the further sum of $625; it is further alleged that, by the terms of the contract, the property mentioned therein was to remain the property of the appellee until paid for; that the appellants had failed to pay for the property, and asks judgment for $2,300, and that the same be declared a lien on the machinery and building and the real estate upon which the building and machinery were situated, and that the property be sold to pay such indebtedness.
The second paragraph of the counterclaim admits the execution of the written contract, and alleges that appellee fully complied with the terms thereof, except making the trial test, which he offered to make, but was prevented from making by certain alleged acts of the appellants; that the machinery is unpaid for, and asks judgment and for the foreclosure of the lien as in the first paragraph.
In the third paragraph, appellee avers that, by agreement of the parties, the contract was changed as to certain work appellants were to do, and that, by
The fourth paragraph of counterclaim is based upon the written contract, and avers a performance of the same by appellee, and that the appellee offered to make the test run, but was prevented from making it by certain acts of appellants therein alleged; that all the machinery and material furnished by appellee was to remain his property until paid for, and -asks judgment for a sum named, and that the property be decreed to be the property of the appellee.
Demurrers were overruled to these- several paragraphs of answer and counterclaim, except the first., There was a special finding of facts and conclusions of law thereon. The court stated, as conclusions of law, that the appellee should recover on his counterclaim the sum of $1,100, the same being the amount due from appellants to appellee on the written contract, and .the further sum of $249.97, on the paragraph of set-off, and that the total amount appellee should recover was $1,349.97; that appellee is entitled to a specific lien on the machinery described in the written contract for the said sum of $1,100, and that appellee was entitled to recover against appellants in» the attachment. Appellants’motions for a venire denovo, that the court make the special finding of facts more specific, and for a new trial,' were overruled. Appellee’s motion for a judgment on the findings and conclusions of law was sustained, and judgment was rendered in appellee’s favor as follows: “It is therefore considered, decreed, and adjudged by the court that the defendant recover of the plaintiff, upon his counterclaim, the sum of eleven hundred dollars, and that
The appellants have assigned as errors the rulings on the demurrers to the second, third, fourth, fifth, and sixth paragraphs of answer and counterclaim, or cross-complaint; that the court erred in its first, second, third, fourth, fifth, and sixth conclusions of law, and in overruling the motions for a venire de novo, to make the special findings of facts more specific, and for a new trial.
The judgment in this case is based upon the paragraphs of counterclaim, and it is from that judgment appellants appeal to this court. The complaint is an action for damages, and seeks the recovery of a money judgment only; but the counterclaim, or cross-corn-
As we cannot consider the sufficiency of the cross-complaint, or counterclaim, in determining the question of jurisdiction, and as the judgment from which the appeal was taken, and which is based upon the counterclaim, or crpss-complaint, decrees the foreclos