Bd. of Com'rs of Floyd Cnty. v. Scott

• Decision Date: 02 February 1898
• Parties: BOARD OF COM'RS OF FLOYD COUNTY v. SCOTT.
• Court: Indiana Appellate Court

19 Ind.App. 227

49 N.E. 395

BOARD OF COM'RS OF FLOYD COUNTY

v.SCOTT.

Appellate Court of Indiana.

Feb. 2, 1898.

Appeal from circuit court, Floyd county; Jacob Herter, Judge.

Claim by Levi H. Scott against the board of commissioners of Floyd county, filed with the auditor in the commissioners' court. Plaintiff appealed, from an order refusing to allow and dismissing his claim, to the circuit court. From a judgment for plaintiff, the board appeals. Affirmed.

A. Dowling, for appellant. Voight & Stotsenburg, for appellee.

WILEY, J.

Appellee, who was a plaintiff below, filed with the auditor of the county, in the commissioners' court, a claim in the following words and figures, to wit: “Levi H. Scott, the claimant herein, says that said board of commissioners of the county of Floyd is indebted to him in the sum of twenty-five hundred and sixteen dollars ($2,516), with interest from the 9th day of September, 1892; that said indebtedness is evidenced by county orders issued by said county of Floyd, and signed by the auditor thereof; that said claimant cannot set out copies of such orders, or the date and amount of each, or to whom payable, or for what drawn, for reason that the same were destroyed by fire on November 28, 1894, and this claimant has no memorandum of their contents; that at the time said orders were destroyed said claimant was the owner of the same; that the same are now due and payable, and he has demanded payment of them from the county treasurer of said county, who has refused to pay the same, although this claimant has offered to indemnify said county on account of his inability to produce or present said orders for cancellation, although said treasurer has sufficient funds in his hands to pay the same. Said claimant files herewith his bond, indemnifying said county on account of the payment of said orders. Wherefore this claimant prays an order for said sum, with interest, and for all proper relief.” The claim thus filed was duly verified by appellee, and at the regular September term, 1895, of the board of commissioners, one Charles D. Kelso, as attorney for the board, filed a written motion to dismiss the claim, and the reason stated in the motion was that the complaint or claim did not state sufficient facts to constitute a valid claim against the county. This motion the court overruled, and the record shows that an exception was reserved to such ruling. The record further shows that the board heard evidence, refused to allow the claim, and entered an order of dismissal. Whereupon the appellee filed his appeal bond, and the proceedings were certified to the circuit court. In the latter court the appellee appeared in the person of Charles D. Kelso, as its attorney, and interposed its oral motion to dismiss, which motion was overruled, and an exception reserved. The case was put at issue by an answer in five paragraphs and a reply, but, as no question is presented or discussed arising under the answer and reply, it is unnecessary to further refer to them. After the case was put at issue, the following order and judgment were rendered: “Comes now the plaintiff, by Messrs. Voight and Stotsenburg, his attorneys, and the defendant comes by Charles D. Kelso, Esq., its attorney, and by consent and agreement of the parties the following decree, finding, and judgment is entered herein, to wit: This cause, being at issue, and called in its order for trial, is by consent and agreement of the parties submitted to the court for trial without the intervention of a jury, upon the issues herein joined and proof adduced, and the court, being fully advised in the premises, finds for the plaintiff; that the material allegations of the complaint are true; and that there is due and owing to the plaintiff from the defendant, the board of commissioners of Floyd county, the amount of the orders sued on herein, the sum of twenty-five hundred and sixteen dollars,” etc. The order further recites that appellee is entitled to judgment for the amount found due, upon his executing a mortgage of indemnity upon certain real estate, which mortgage was duly executed and delivered, and which was conditioned to save appellant harmless on account of the payment of said orders, which said mortgage was to be in full force and binding for the term of five years. Thereupon the judgment was pronounced against appellant for the amount of principal and interest found due. This judgment was entered on November 29, 1896, and on December 23d following, and during the same term of court, the appellant, by A. Dowling, its attorney, filed its motion for a new trial, and assigned as reasons therefor-First, that the finding of the court was not sustained by sufficient evidence; and, second, that the finding of the court is contrary to law. This motion was overruled, and appellant excepted, and time was given to prepare and file its bill of exceptions. Within the time fixed the appellant filed its bill of exceptions, from which we quote the following: “Be it remembered that on the 29th day of November, 1895, when said case was called for trial, the plaintiff, by Evan B. Stotsenburg, his attorney, stated in open court, addressing the Hon. Jacob Herter, judge of the Floyd circuit court, ‘There will be a judgment by consent in this case in favor of the plaintiff.”’ “Mr. Charles D. Kelso, attorney of record for the defendant, in open court, said, ‘That is right, your honor; Mr. Stotsenburg will prepare the order.’ And that was all the evidence given in the cause.”

These are the facts appearing from the record essential to the determination of the questions presented. Plaintiff has assigned as error-First, that the court erred in overruling appellant's motion to dismiss; second, that the complaint does not state facts sufficient to constitute a cause of action; and, third, that the court erred in overruling the motion for a new trial.

Appellant in its brief discusses the first and second specifications of the assignment of errors together, for the reason, as stated, that they “both assail the sufficiency of the complaint.” We cannot agree with counsel in this, for we do not think that the first assignment presents any question for review. The record shows that in the commissioners' court appellant, by its attorney, moved to dismiss the claim on the ground that it did not state facts sufficient, etc. In cases of this character, on appeal from the commissioners' court, the proceedings are de novo. In the circuit court that motion was not refiled, but a verbal motion was made to dismiss, but upon what ground the record is silent. True, the appellant excepted to the action of the court in overruling its motion to dismiss, but did not save the question by bill of exceptions. It seems to us that the same rule would obtain upon a motion of this character as upon that to make a complaint or pleading more specific; and in the latter case, where a motion is made to require the pleading to be made more specific, and the paper denominated a “motion” does not indicate in what particular it is desired to make the complaint or pleading more specific or definite, no question is presented, unless embodied in the bill of exceptions. City of Elkhart v. Witman, 122 Ind. 538, 23 N. E. 796;Insurance Co. v. Doll, 80 Ind. 113. But it has been repeatedly held that, where the reasons for a motion to dismiss a cause do not appear by bill of exceptions, they are not in the record, and appellate court cannot review a ruling denying the motion. Long v Town of Brookston, 79 Ind. 183;Hicks v. State, 83 Ind. 483;Lippman v. City of South Bend, 84 Ind. 276;Evans v. Schafer, 88 Ind. 92;Smith v. McDonald, 3 Ind. App. 49, 28 N. E. 994;Yost v. Conroy, 92 Ind. 464;Sheeks v. Fillion, 3 Ind. App. 262, 29 N. E. 786.

It is impossible for the court to know from the record before us whether or not the court erred in overruling the motion to dismiss, for there is no means of knowing from the record the basis or reason of the motion, and hence we cannot pass upon it. But if, under the facts as shown by the record, the appellant can raise the question of the sufficiency of the complaint, and the complaint is defective, then it can get the relief desired under the second specification in the assignment of errors. The judgment in this case was entered by agreement. When the case was called for trial counsel for appellee said, “There will be a judgment by consent in this cause in favor of the plaintiff;” and counsel for appellant said, addressing the court, “That is all right, your honor; Mr. Stotsenburg will prepare the order.” It is evident from this that the parties, by counsel at least, had agreed upon the terms of settlement, and a basis upon which judgment should be rendered. There is no pretense that Mr. Kelso was not authorized to act for appellant. He was its attorney of record, and an agreement made by him in open court, and entered of record, was, in the absence of a fraud or collusion, binding. There is nothing in the record to show that there was any fraud or collusion in the agreement that judgment might be entered. “An attorney, being an agent, duly authorized, his acts are those of his client; the client is therefore bound by all the acts of his attorney in the course of legal proceedings, in the absence of fraud or collusion, and he cannot plead the negligence of his attorney as a ground of relief.” 3 Am. & Eng. Enc. Law (2d Ed.) p. 324. In support of the above proposition many authorities are cited. In Harvey v. Fink, 111 Ind. 249, 12 N. E. 396, it was held that where a party is in court, by his attorneys, when an order is made granting the opposing party a new trial as of right, and does not object thereto, he cannot afterwards move to vacate the order upon the ground that it was made without his knowledge or consent. In Hudson v. Allison, 54 Ind. 215, the question decided was much like the one before us. There the assignment of error called in question the...