61 Ind. 162 | Ind. | 1878
In this action the appellee, as plaintiff, sued tthe appellant, as defendant, in a complaint of three paragraphs, in the court of common pleas of La Porte county, Indiana.
The appellant demurred to each of the paragraphs of said complaint, upon the following grounds of objection:
1st. That it did not state facts sufficient to constitute ;a cause of action; and,
2d. Por a defect of parties defendants to the action, in :this: that one Alfred Lomax was a necessary party defendant to the action.
These demurrers were severally overruled, and to each of these decisions the appellant excepted.
The appellant answered in thirteen paragraphs, the first being a general denial, and each of the others setting up affirmative matters by way of defence.
Replies, in general denial, were filed to the affirmative paragraphs of answer.
Afterward, at the Pebruary term, 1873, of said court of common pleas, it was ordered that the cause he transferred to the court below. In this latter court, by the agreement of the parties in open court, all the matters in controversy in this action were referred to Seth Eason, Durand C. Alexander and James Moore. Afterward, on
In this court, the appellant has assigned as errors the-following decisions of the court below:
■ 1. In overruling the appellant’s demurrers to the first,, second and third paragraphs of the appellee’s complaint;,
2. In overruling the appellant’s exceptions to the referees’ award, and in sustaining a demurrer thereto; and,
3. In refusing to sustain the appellant’s exceptions to-the referees’ award.
We will consider and decide the several questions presented by these alleged errors in the order of their assignment.
1. In the first paragraph of his complaint, the appellee alleged, in substance, that, on the 1st day of September, 1870, and for a long time before and after that day,, the appellant and one Alfred Lomax were partners, under the firm name of Way & Lomax, and on said day the-appellant employed the appellee as book-keeper, and a person skilled in the settlement of accounts, to post, settle and adjust the books of account of the said firm, as between said firm with all persons whatsoever, and as. well between the individual members thereof, and agreed to pay for such services what the same should be reasonably worth; that, by the terms of said employment and by appellant’s request, the appellee entered upon said labor, and was employed therein for the period of seventy days; that his said services were reasonably worth,
As we have seen, the appellant demurred to this paragraph of the complaint upon two grounds of objection, namely, a want of sufficient facts therein, and a defect of parties defendants.
The latter objection is the only one discussed by the appellant’s counsel in this court; and, therefore, the first one may be regarded as waived.
It is insisted by the appellant’s attorneys, that it is apparent on the face of this paragraph, that the Alfred Lomax therein mentioned was a necessary party defendant to this action. In discussing this point, the argument of counsel is founded, not upon the allegations of this paragraph of the complaint, but upon the stipulations of the written contract of dissolution of the firm of Way & Lomax, a copy of which contract was filed with said paragraph.
It is said in argument, that Lomax was a necessary party defendant, under said written contract, because “it is specifically agreed that the debts should be paid by Way, from the assets of the old firm which were turned
It follows, therefore, that we can not look to the copy of said written contract, for the purpose of determining whether the said Lomax was or was not a necessary party defendant to this action. In dependent-ly of this written contract, it seems to us, that this first paragraph of the complaint stated a good cause of action against the appellant only, and that it did not appear from any of its averments, that the said Lomax was a necessary party to said action.
Of the errors assigned upon the decisions of the court below in overruling the demurrers to the second and third paragraphs of the complaint, all that is said by the appellant’s counsel in this court is contained in this sentence : “ The demurrers to the second and third counts, of the complaint, we submit without argument.”
This, we think, is equivalent to an express waiver of all objections to those two paragraphs.
2. The second error assigned by the appellant was the decision of the court below in overruling his exceptions to the “ award of the arbitrators,” and in sustaining the appellee’s demurrer to said exceptions. It appeal’s from the record, that, after the issues were joined in this action, the following order was entered therein:
“ Now come the parties by counsel, and agree in open court that all the matters in controversy in this suit be referred to Seth Eason, Durand O. Alexander and James,
The report of the referees was, in substance, as follows: “"We find for the plaintiff, that there is due him from the defendant the sum of two hundred and fifty dollars, and we do hereby award to said plaintiff', and for his damages in said behalf, the said sum of two hundred and fifty dollars, in full satisfaction of all said matters in controversy between said parties in said action; and we further find and award, that the said parties each pay one:half of the costs and expenses of this reference or arbitration, and that the said defendant pay all the other costs made in this cause in the La Porte Circuit Court.”
The appellant’s exceptions to the referees’ report in this action were, in substance, as follows:
“ First. Eor misconduct in said arbitrators, in this, that the referees refused to make a finding of all the facts, and their conclusions of law arising thereon, although the defendant specially requested that such be done, by filing the following written request before them, before entering upon the trial of the case, to wit: ‘ John B. Fravel v. Seth Way. The defendant asks, that all the facts and the conclusions of law thereon be found specially by said referees, and the conclusions thereon be stated; ’ and which written request is herewith filed and made a part hereof, and which, the said defendant says, is such misconduct as that it was aud will be a' great prejudice to him.
“ Second. That the report was not made at the time made and fixed by the order of reference, to wit, on the
The facts stated in the first of said exceptions were verified by the oath of the appellant’s attorney.
The appellee demurred to the appellant’s exceptions, upon the ground that they did not, nor did either of them, state facts sufficient to constitute a valid objection to the referees’ report.
In discussing the questions presented by the second alleged, error, in their argument of this cause in this court, the appellant’s learned attorneys say: “ The particular point is, whether, under the above order of reference, either party waived his right to require the referees to find ‘the facts and conclusions of law separately.’ ”
In section 349 of the practice act, it is provided, that “All or any of the issues in the action, except in action for divorce or for the nullification of marriages, whether those issues be of fact or of law, or both, may be referred upon the written consent of both parties.”
Section 350 of said act provides, that “ The trial by referees is conducted in the same manner as a trial by the court. They have the same power to grant adjournments as the court upon such trial. If required, they must state the facts found and the conclusions of law separately, and their decision must be given and may be excepted to and reviewed in like manner. The report of the referees upon the whole issue stands as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court. When the reference is to report the facts, the report has the effect of a special verdict.” 2 R. S. 1876, p. 178.
It would seem, from these provisions of the practice act, that the appellant had the right to ask that the referees, in this case, should “ state the facts found and the conclusions of law separately,” in their report. Perhaps the better practice, in such a case, would be to require
The appellant’s second exception to the referees’ report was, that it was not made on the second day of the term of court, as specified in the order of reference, but on the-fifth day of said term.
Ve think that it was within the discretion of the-court below to allow the referees to make their report on a day subsequent to the day named in the order of reference; and more especially so, as it does not appear that the appellant objected to, or was in any manner prejudiced by, the making of said report at a later day in tho term than the day named in said order. In support of this exception, the appellant’s counsel rely entirely upon, the case of Conrad v. Johnson, 20 Ind. 421. In our opinion, however, the case cited is not in point. It was a case-of arbitration, in which the parties had stipulated in their agreement of submission, that the award of the arbitrators should be delivered to them on or before a specified day. In that case, the power of the arbitrators tO' act was founded upon and controlled by the agreement of the parties. But, in a reference under the statute, such as in the case now before us, the referees derive their powers from, and are controlled by, the orders of the court in which the case is pending. It seems to us, that the appellant’s exceptions to the referee’s report in this-case did not present any valid or sufficient objection thereto, and that they were properly overruled.
We find no error in the record.
After the record of this canse was filed in this court, and before the submission thereof, it was shown to the court that the appellant had died since the rendition of judgment herein by the court below, and that James A. Way and John P. Oakes were the administrators of said decedent’s estate. Upon their application, leave was granted to substitute their names as appellants in this
■Since the submission of the cause, it has been shown to this court that the appellee has also departed this life.
The j udgmeut is therefore affirmed, at the costs of the appellant’s administrators, as of the May term, 1875, of this court, at which term this cause was submitted, to be-levied'of the appellant’s estate in their hands to be administered.