Edwards v. Van Cleave

• Decision Date: 30 March 1911
• Docket Number: No. 6,925.,6,925.
• Parties: EDWARDS et al. v. VAN CLEAVE et al.
• Court: Indiana Appellate Court

47 Ind.App. 347

94 N.E. 596

EDWARDS et al.

v.VAN CLEAVE et al.

No. 6,925.

Appellate Court of Indiana, Division No. 1.

March 30, 1911.

Appeal from Circuit Court, Montgomery County; Jen West, Judge.

Action by Henry D. Van Cleave and others against Chandler S. Edwards and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

M. W. Bruner, for appellants. S. C. Kennedy, H. D. Van Cleave, and C. B. Marshall, for appellees.

FELT, J.

Suit by appellants to review a judgment rendered against them in the Montgomery circuit court. The appellants demurred separately and severally to the complaint for insufficiency of facts, and each of the demurrers was sustained and exceptions given. Appellants refusing to plead further, judgment was rendered against them, from which this appeal is taken, and the rulings on the demurrers are assigned as errors.

The complaint for review sets out in full the pleadings, summons, return of sheriff thereon, and docket entries in the original suit, and states that there is manifest error of the court in this: That the facts are insufficient to constitute a cause of action against appellants or either of them, and the court did not have jurisdiction of their persons. The complaint also shows that appellee Van Cleave sold and assigned the original judgment to appellee Fletcher; that said Goose River Bank is a corporation organized under the laws of North Dakota, and appellants were then, and have continued to be, and are, residents of that state. Prayer that the judgment be reviewed and declared null and void.

The original complaint on which judgment was rendered for appellee Van Cleave charged that appellees Smith and Walkup were partners in the real estate business in Crawfordsville, Ind., doing business under the name of R. C. Smith, and that they entered into a written contract with appellee Van Cleave, whereby they agreed to pay him one-third of the commission, amounting to $154, for the sale of 308 acres of real estate in the state of North Dakota, owned by appellants; that said appellee, Van Cleave, performed his part of said agreement, furnished the purchaser who bought the real estate, and paid the agreed price therefor; that appellants paid to said Smith and Walkup two-thirds of said commission, and at the time agreed with said Smith and Walkup to retain one-third thereof and to pay the same to said Van Cleave, and, upon failure so to do, the original suit was commenced and summons duly issued and served by “reading the within summons to and within the hearing of Robert C. Smith and Rankin C. Walkup and by reading this summons to Robert C. Smith as agent of Chandler S. Edwards, Chandler L. Grandin, and reading to Robert C. Smith as agent of Goose River Bank, and by leaving a true and certified copy of the within summons with Robert C. Smith as agent for said Edwards and Grandin, and by leaving a true and certified copy of this summons with Robert C. Smith as agent for Goose River Bank this 22d day of September, 1906. John H. Mount, Sheriff Montgomery County, By J. B. B., Deputy.” The record also shows the publication of the deposition of said Smith, and that each of the defendants had been duly served with process more than 10 days before the 6th day of October, 1906, which was the return day indorsed upon the summons, and that appellants Edwards, Grandin, and Goose River Bank and appellees Smith and Walkup were duly defaulted, and the case submitted to the court for trial upon the default, and the court, having heard the evidence, found for the plaintiff and rendered judgment in his favor in the sum of $154 and for costs.

The contention of appellants is that the original complaint was not sufficient to sustain a judgment against them, and that the court did not have jurisdiction of the appellants authorizing the rendition of judgment against them. They assert that the original complaint was for the collection of a commission for the sale of real estate and does not allege that the contract was in writing, and therefore, under our statute and decisions, insufficient. We cannot agree with appellants' construction of the original complaint, for by the averments it appears that the sale of the real estate was made according to the agreement and the commission paid; that appellants, by special agreement with Smith and Walkup, held the part thereof, which was to go to appellee Van Cleave, and agreed to pay the same to him, and failed so to do.

[1] The original suit, therefore, was not upon the contract for the collection of a commission, but upon a new promise made after the sale was consummated, and at the time the commission was settled.

Following the averments of the complaint, there was no question or dispute about the commission, and all concerned at that time conceded Van Cleave's right to the money retained by appellants, not as their own, but as his. The breach of contract...