Bd. of Com'rs of Lake Cnty. v. State ex rel. Reed

• Citation: 179 Ind. 644,102 N.E. 97
• Decision Date: 06 June 1913
• Docket Number: No. 21,936.,21
• Parties: BOARD OF COM'RS OF LAKE COUNTY v. STATE ex rel. REED et al.
• Court: Indiana Supreme Court

179 Ind. 644

102 N.E. 97

BOARD OF COM'RS OF LAKE COUNTY

v.STATE ex rel. REED et al.

No. 21, 936.

Supreme Court of Indiana.

June 6, 1913.

Appeal from Superior Court, Lake County; Virgil S. Reiter, Judge.

Mandamus by the State, on relation of John Wesley Reed and Edwin Bump, doing business under the firm name and style of the Reed-Bump Construction Company, against the Board of Commissioners of Lake County. Judgment for relators, and the Board appeals. Reversed.J. Frank Meeker, of Crown Point, for appellant.

William J. Whinery, of Hammond, for appellees.

SPENCER, C. J.

Action by appellees to mandate appellant to allow or disallow a balance claimed by appellees to be due them on a contract for the construction of a certain public building. Issues were joined on appellees' complaint and appellant's general denial and two paragraphs of affirmative answer. Appellees then moved for a judgment in their favor on the pleadings, which motion was sustained and this appeal taken.

[1] Appellant has failed either to set out in its brief a copy of the demurrer which was addressed to appellees' complaint or to state the substance thereof, and any question arising out of the trial court's ruling on such demurrer is therefore waived. Chicago, etc., R. Co. v. Walton, 165 Ind. 253, 74 N. E. 1090;Knickerbocker Ice Co. v. Gray, 165 Ind. 140, 72 N. E. 869, 6 Ann. Cas. 607;Perry, etc., Stone Co. v. Wilson, 160 Ind. 435, 67 N. E. 183.

[2] The assignments that “the court erred in rendering judgment on the pleadings” and that “the judgment is contrary to law” are too general to present any question for our consideration. Seisler v. Smith, 150 Ind. 88, 46 N. E. 993;McGinnis v. Boyd, 144 Ind. 393, 42 N. E. 678;Clayton v. Blough, 93 Ind. 85. The only assignments properly presenting any question for review are as follows: (1) Appellees' complaint does not state facts sufficient to constitute a cause of action against appellant; (2) the trial court erred in overruling appellant's motion to make appellees' complaint more specific; and (3) the court erred in sustaining appellees' motion for judgment on the pleadings. Of these assignments the first and second may be disposed of by applying the following well-established rules as laid down by this court.

[3] 1. A complaint sufficient to bar another action for the same cause is good as against an attack made for the first time on appeal. Bedford Belt R. Co. v. Brown, 142 Ind. 659, 42 N. E. 359;Scudder v. Jones, 134 Ind. 547, 32 N. E. 221;Burkhardt v. Gladish, 123 Ind. 337, 24 N. E. 118.

[4] 2. The refusal of a motion to make a pleading more specific is so far within the discretion of the trial court that on appeal a reversal on that ground will not follow unless the rights of the complaining party have suffered. Leimgruber v. Leimgruber, 172 Ind. 370-374, 86 N. E. 73;Phænix Ins. Co. v. Rowe, 117 Ind. 202-204, 20 N. E. 122.

The principal question to be determined by this appeal is, Did the trial court err in sustaining appellees' motion for judgment on the pleadings? Omitting any details not necessary for a determination on this question, it appears from the complaint, in substance, that the relators in this case, hereinafter referred to as appellees, are copartners, doing business as the Reed-Bump Construction Company; that on July 18, 1908, they entered into a contract with appellant to build an addition to and reconstruct certain portions of the Lake county jail, the contract price for such work being $45,040; that appellees entered upon the performance of said contract and did perform all things on their part to be performed thereunder; that during the progress of the work appellant allowed certain payments to appellees in accordance with the terms of said contract; that on June 1, 1910, appellees filed with appellant their final claim and estimate showing a balance due them under said contract in the sum of $6,919; that up to and including March 1, 1911, appellant allowed of this balance the sum of $5,419, leaving a remaining balance of $1,500, which remaining balance appellant “then and there refused, and still refuses, to either allow or disallow,” or any part thereof. Then follow allegations showing that the claim is long past due; that a demand has been made; and that the county council of Lake county has duly appropriated funds liable for the payment of said claim and sufficient to pay any and all claims arising out of said contract. The prayer for an alternative writ of mandate is that appellant be ordered “to either allow or disallow these relators' said claim.” To this complaint appellant filed a general denial and two paragraphs of affirmative answer in which it is alleged, in substance, that appellees failed and neglected to perform certain conditions required of them by the terms of said contract.

[5] A writ of mandamus will lie to compel a board of county commissioners to take action on claims against the county when such claims are properly presented to said board. Section 1225, Burns 1908; 26 Cyc. 313; Merrill on Mandamus, § 111; Henderson, Auditor, v. State ex rel., 53 Ind. 60;People v. Supervisors of Delaware County, 45 N. Y. 196.

[6] But section 5956, Burns 1908, provides that: “In...