Aetna Indemnity Company v. Wassall Clay Company

• Decision Date: 16 February 1912
• Docket Number: 7,498
• Parties: AETNA INDEMNITY COMPANY v. WASSALL CLAY COMPANY
• Court: Indiana Appellate Court

97 N.E. 562

49 Ind.App. 438

AETNA INDEMNITY COMPANY v. WASSALL CLAY COMPANY

No. 7,498

Court of Appeals of Indiana

February 16, 1912

From Superior Court of Marion County (76,229); John L. McMaster Judge.

Suit by the Wassall Clay Company against the Aetna Indemnity Company and others. From a judgment for plaintiff, said company appeals.

Affirmed.

Miller Shirley & Miller, for appellant.

Charles B. Clarke and Walter C. Clarke, for appellee Wassall Clay Company.

OPINION

HOTTEL, J.

This was a suit brought by the Wassall Clay Company (hereinafter referred to as appellee) on a contractor's bond for labor and materials furnished such contractor.

The contractor was the Indianapolis Construction Company, and the suit was filed against said contractor and the surety on its bond, namely this appellant. "Aetna Indemnity Company," and Edward J. Robinson treasurer of Marion county and ex officio treasurer of the city of Indianapolis, and George T. Breunig, controller of the city of Indianapolis.

In addition to asking judgment against said construction company and its surety, on said bond, for the amount due on account of labor and materials furnished to such contractor on its said contract, plaintiff asked that the city treasurer be enjoined from paying out any funds in his hands to which said construction company was entitled, that a receiver for such funds be appointed, and that such funds be applied to the payment of plaintiff's claim.

Appellant filed a cross-complaint, asking the same relief except as to the money judgment against the contractor and its surety. The amended complaint was in two paragraphs, each of which was predicated on separate contracts and bonds. This amended complaint, and appellant's cross-complaint alleged the insolvency of the construction company, that it had undertaken to make certain pretended assignments of its rights in the contract, and that the treasurer of the city had certain funds, in the form of money and bonds, in his hands which constituted an unpaid balance on the contract, and other averments essential and necessary as supporting the equitable relief prayed for.

Answers unimportant in their application to the question presented by this appeal were filed. After the issues were closed, the case was submitted to the court for trial, and it rendered judgment for the plaintiff against the Indianapolis Construction Company and the Aetna Indemnity Company for the sum of $ 666.45, without granting the equitable relief asked for in said complaint and cross-complaint, and also rendered judgment for costs for defendant Robinson, treasurer, against the plaintiff.

Appellant filed a motion for a new trial, which was overruled by the court, and this ruling presents the only error assigned and relied on in this appeal.

In considering this appeal, we are first confronted with the statement of counsel for appellee, that no question is presented thereby, because the evidence of the case is not in the record. In support of this contention, appellee insists that appellant failed to present the bill of exceptions to the trial judge for his signature within the time allowed. Appellee has neither cited the pages of the record presenting said question, nor argued or cited authority on it. Ordinarily, it would thereby waive consideration of such question, but inasmuch as the Supreme Court and the Appellate Court have always refused to consider any questions depending on the evidence, where their attention is called to the fact that the evidence is not properly brought into the record, we deem it proper that a disposition of this question should first be made.

It clearly appears from this record that this cause was in fact tried and the judgment herein rendered by the Honorable James P. Baker, who was judge pro tem. of said court, during the absence of the regular judge, from June 18 to June 26, inclusive; that from and after June 26, 1909, all proceedings had in said cause were before Judge McMaster, the regular judge of said court; that the bill of exceptions herein was presented to the regular judge of said court within the sixty days allowed for such presentation, but was not presented to the Honorable James P. Baker, who tried said cause, until after the expiration of the sixty days.

The question, therefore, presented and to be determined by this court is: Which judge's signature was necessary to the authentication of said bill of exceptions? If the signature of the regular judge was necessary to such authentication, and if he were the proper judge under the law to sign said bill, the presentation was in time; if, however, the judge pro tem. who tried the case and rendered the judgment was the proper judge to sign said bill, and if his signature was necessary to its authentication, the presentation thereof was not in time, and the evidence is not in the record.

The solution of this question depends on the time of the expiration of the appointment of said judge pro tem., and whether, under the statute providing for his appointment, he had jurisdiction of cases after the expiration of his appointment, where the trial was begun before him and not finished. The statute authorizing this appointment is § 1483 Burns 1908, § 1364 R. S. 1881, and that part which defines his "power and authority" reads as follows: "Such appointee shall have the same power and authority during the continuance of his appointment as a regularly elected judge of said court."

The language just quoted limits the power and authority of such appointee to a period within his appointment. His authority to act as such judge exists by virtue of the statute alone, and such authority cannot be extended beyond its provisions.

The term for which said Baker was appointed judge pro tem. in this case, as evidenced by his signature to said bill of exceptions, and by the other parts of the record, was during the absence of the regular judge, and was from June 18 to June 26, inclusive. At the expiration of this period, under his appointment his power and authority as such judge, in this and all other cases over which he had assumed jurisdiction, ceased. The court in which this case was pending continued, but the judge who tried the case was no longer its judge. He was therefore without authority to sign such bill of exceptions, and his signature thereto was unnecessary. The regular judge of the court at the expiration of said period again became the judge of said court, with power and authority over all matters pending before it, and thereby became the proper person to sign said bill of exceptions. This we think is conclusively settled by our Supreme and Appellate Courts in the following cases: Ketcham v. Hill (1873), 42 Ind. 64, 71; Reed v. Worland (1878), 64 Ind. 216, 219, 220; McKeen v. Boord (1878), 60 Ind. 280; Smith v. Baugh (1869), 32 Ind. 163, 165, 168; Cincinnati, etc., R. Co. v. Grames (1894), 8 Ind.App. 112, 115, 34 N.E. 613.

We will next consider the questions presented by the motion for a new trial. Appellant makes no contention that appellee is not entitled to its judgment for $ 666.45 due for labor performed and material furnished to such contractor, but its sole contention is based on the failure of the court to grant the equitable relief asked for in said complaint and cross-complaint. It is insisted that the averments of these pleadings required the court to render the relief prayed for and that the material averments of such pleadings were, in this regard, fully sustained by the proof. Appellant bases its contention on the showing made in the complaint and the...