Haehnel v. Seidentopf

Hottel, J. Appellee, in a complaint in one paragraph, sought to recover of appellant a balance alleged to be due him on account of work and labor performed and material furnished in the erection of certain buildings on appellants’ real estate described in the complaint, and to foreclose a mechanic’s lien on said premises. A motion to make the complaint more specific, and a demurrer to the complaint were each overruled. The. appellants filed an answer in denial and a counterclaim. There was a trial by the court and a general finding that there was due appellee on his complaint the sum of $440, and a finding for appellants on their cross-complaint in the sum of $190, that appellee should have judgment for $250, plus an attorney fee of [220] $40, which sum was declared to be a lien upon said real estate. Judgment was rendered for appellee in accord with the finding. Appellants filed a motion for new trial wbicb was overruled. During tbe progress of the trial, it developed that appellee, after filing bis suit, bad changed his residence from that part of the city of Hammond which is located in the State of Indiana, where he resided when his action was begun, to a part of said city located in the state of Illinois. Thereupon appellants moved the court to require appellee to give a cost bond. The appellee then filed a petition to prosecute his action as a poor person, and supported the same by an affidavit, whereupon the court permitted him to so prosecute his action, to which ruling of the court the appellants excepted. The several rulings of the trial court above indicated, except the last, are each separately assigned as error in this court and relied on for reversal. The ruling last above indicated is attempted- to be presented by the first ground of appellants’ motion for a new trial, in the following words, viz.: “That the Court erred in not requiring plaintiff .to file bond for costs, the plaintiff being a nonresident at the time of the beginning of the trial.” 1. [221] 2. [220] This is not the ruling shown by the record to have been made by the court. The only ruling disclosed by the record affecting this question is the ruling permitting appellee to prosecute his action as a poor person. Assuming, however, that the ruling made had the effect of a refusal by the court to require appellee to file a cost bond, and assuming also, without so deciding, that such ruling is properly presented by the ground of the motion for new trial, supra, rather than by an independent assignment of error, the record discloses that appellee, to relieve himself of the necessity of giving such bond, made an application, supported by affidavit, to prosecute his action as a poor person. If, before becoming a nonresident of the State, he had made a proper application to prosecute [221] his action as a poor person, and such application had been granted by the court, his removal from the State after-wards would not have necessitated the giving of a cost bond. Wright, Admr., v. McLarinan (1883), 92 Ind. 103, 105; Fuller, etc., Co. v. Mehl (1893), 134 Ind. 60, 62, 63, 33 N. E. 773; Pittsburgh, etc., R. Co. v. Jacobs (1894), 8 Ind. App. 556 et seq., 36 N. E. 301; §261 Burns 1914, §260 R. S. 1881. We do not see any substantial difference between the question here attempted to be presented and' that determined in the cases cited, supra. In any event, the action of the court in permitting appellee to prosecute his action as a poor person is not challenged by said ground of appellants’ motion for a new trial, and could not be properly challenged thereby, as such ruling constitutes a cause for independent assignment of error. Pittsburgh, etc., R. Co. v. Jacobs, supra, p. 557. 3. Assuming, therefore, as we must, in the absence of such a challenge, that the action of the trial court, permitting appellee to prosecute his action as a poor person, was proper, it follows as a matter of course that no error resulted from refusing to require appellee to give a cost bond. The other grounds of appellants’ motion for new trial challenge the admission "and exclusion of evidence, and attempt to present such questions as can be presented only by the general bill of exceptions containing the evidence. 4. The record discloses that the judgment - was rendered March 30, 1915, and the motion for a new trial overruled June 30, 1915, from which time the appellants were given sixty days to file their bill of exceptions. There is nothing in the record to show that this time was ever extended under §661 Burns 1914, Acts 1911 p. 193. The bill of exceptions shows that it was presented to the judge for his signature August 31, 1916, more than sixty days after the overruling of the motion for new trial, and [222] hence not within the time granted by the trial court. The bill recites that “on this the 31st day of August 1915 and within the time allowed by the Court for the filing of their bill of exceptions * * * the send defendants presented to the Judge * * * their bill of exceptions,” etc. (Our italics.) The recital in the bill of the . day it was presented will be taken as correct regardless of the italicized language, supra, which follows. Malott v. Central Trust Co. (1906), 168 Ind. 428, 431, 79 N. E. 369, 11 Ann. Cas. 879. 5. In order to present any question, the proper determination of which in any way depends on the evidence, the bill of exceptions containing such evidence must be presented to the trial judge within the time fixed for filing the same. Joseph v. Mather (1887), 110 Ind. 114, 115, 116, 10 N. E. 78; Cornell v. Hallett (1895), 140 Ind. 634, 646, 40 N. E. 132; Stoner v. Louisville, etc., R. Co. (1893), 6 Ind. App. 226, 228, 33 N. E. 242; Indiana, etc., Oil Co. v. O’Brien (1902), 160 Ind. 266, 278, 65 N. E. 918, 66 N. E. 742. 6. Appellants’ first assignment of error, which challenges ' the complaint on the ground that it does not state facts sufficient is no longer available. §348 Burns 1914, Acts 1911 p. 415. 7. ' The second assigned error challenges the overruling of the motion to make more specific. The only matter suggested in appellants’ brief under this heading is that the complaint should have been made to state “what if any knowledge he (appellee) had given to defendant Catherine Haehnel of the contract for the erection of said building.” As affecting this question, the complaint alleges that on November 11, 1914, Herman Haehnel and Catherine Haehnel were the owners in fee simple, as tenants by entireties of the lots in question (describing them) ; that on said day, appellee and said Herman entered into the written contract filed with and made part of the com [223] plaint. Averments follow showing the performance of the work and the furnishing of the material under said contract, and also an agreement with said Herman Haehnel for the performance of work and furnishing of material for another building and for certain changes in the first, a bill of particulars for which is filed with and made a part of the complaint; It is then averred that “said buildings were constructed with the knowledge consent and acquiescence of the defendant Catherine Haehnel, and that in all thing's herein mentioned said Herman Haehnel acted for himself and also for his said wife as her agent.” These averments, in' effect, charge the wife with all the knowledge possessed by the husband affecting said contract, and hence meet appellants’ said objection to the complaint. Taggart v. Kem (1898), 22 Ind. App. 271, 277, 279, 53 N. E. 651; Wilson v. Logue (1892), 131 Ind. 191, 30 N. E. 1079, 31 Am. St. 426; Dalton v. Tindolph (1882), 87 Ind. 490. 8. Appellants’ third assigned error challenges the ruling on the demurrer to the complaint, and in their brief, under points and authorities, applied to such alleged error, their objection to the complaint is stated as follows: “The complaint on its face showed that the plaintiff had contracted with one of the owners by entirety without the consent or knowledge of the other owner.” The averments of the complaint, quoted supra, show the contrary. In this connection, we might add that §7860 Burns 1914, §5123 R. S. 1881, which requires the written consent of the wife in order to charge her personally and alone with repairs or improvements made en her separate real estate by order of the husband, has no application to real estate which the wife and hustjand own as tenants by the entireties. Taggart v. Kem, supra, 275. Finding no reversible error in. the record, the judgment below is affirmed. Note. — Reported in 114 N. E. 422.