Farmers' Loan & Trust Co. v. Canada & St. L. Ry. Co.

• Decision Date: 17 February 1891
• Citation: 26 N.E. 784,127 Ind. 250
• Parties: Farmers' Loan & Trust Co. v. Canada & St. L. Ry. Co. et al.
• Court: Indiana Supreme Court

127 Ind. 250

26 N.E. 784

Farmers' Loan & Trust Co.

v.Canada & St. L. Ry. Co. et al.

Supreme Court of Indiana.

Feb. 17, 1891.

Appeal from circuit court, Elkhart county; J. M. Vanfleet, Judge.

W. L. Stonex, H. A. Gardner, and Gardner, McFadon & Gardner, for appellant. E. E. Mummert, Wilson & Davis, Osborne & Zook, Vesey & Miller, and Baker & Baker, for appellees.

ELLIOTT, J.

The appellant asserts a prior lien upon a fund derived from the sale of a railroad owned by the Canada & St. Louis Railway Company, and the appellees, other than the railway company, contest the claim of the appellant, asserting that they hold prior liens under the lien laws of this state. By motion in arrest of judgment, the appellant attempts to challenge the counter-claims or cross-complaints filed by the mechanics, material-men, and laborers. Whether this attempt can prevail depends upon the effect of a decree made during the progress of the case. The recitals of the record material to the immediate point in dispute are these: “And now comes the plaintiff, and come also the defendants and cross-complainants, and, by agreement of parties, it is ordered that said complaint, and each of said cross-complaints, shall be heard and determined by the court without pleadings or answers, the same as though each complaint and cross-complaint had been fully and formally answered unto by said respective defendants therein, and it is agreed that all matters of defense, set-off, counter-claim, and reply may be given in evidence, by any party against any other party, without further pleadings. And thereupon said complaint and cross-complaints being at issue, under the agreement aforesaid, the same are severally submitted to the court for trial by agreement of all the parties; and the court, having heard the evidence, and being sufficiently advised in the premises, finds that the Canada & St. Louis Railway Company is indebted to said plaintiff in the sum of two hundred thousand dollars and more; that said plaintiff and said several cross-complainants have and hold liens on said railway and its property and franchises, for money due and owing for the right of way, for work and labor, for materials furnished, and by virtue of a mortgage executed by it to the Farmers' Loan & Trust Company of New York.” We have no doubt that the agreement of the parties and the decretal order cut off a motion in arrest of judgment. Where parties agree that pleadings are sufficient, they cannot afterwards make any question upon them except the question of jurisdiction of the subject. There is here an express agreement that the “complaint and cross-complaints shall be heard and determined by the court,” and, in the face of this agreement, the appellant cannot, after a final hearing, challenge the sufficiency of the cross-complaints. Not only is there an express agreement to the effect stated, but there is also an agreement dispensing with further pleadings, and submitting the cause to the court for trial; thus clearly waiving all objections to the pleadings. This agreement was carried into effect by a trial pursuant to the agreement of the parties, and a judgment deciding the questions submitted to the court. Even in the absence of an express agreement, the voluntary submission of a cause for trial waives the failure to file pleadings forming an issue. June v. Payne, 107 Ind. 307, 7 N. E. Rep. 370, and 8 N. E. Rep. 556; City of Warsaw v. Dunlap, 112 Ind. 576, 11 N. E. Rep. 623, and 14 N. E. Rep. 568; Hartlep v. Cole, 101 Ind. 458;Johnson v. Briscoe, 92 Ind. 367;Hege v. Newsom, 96 Ind. 426;Chambers v. Butcher, 82 Ind. 508;Lewis v. Bortsfield, 75 Ind. 390; Felger v. Etzell, Id. 417. The principle asserted in the cases cited fully authorizes our conclusion that the appellant is precluded from attacking the pleadings; that principle would, indeed, warrant us in going much further than it is necessary or proper for us to do in this instance.

The decree from which we have copied is conclusive upon the parties, in so far as it adjudges that they are each and all holders of liens against the railroad. This appears in the extract we have already copied from the decree, and it is made still clearer by the recital, which reads thus: “And the court further finds that the Canada& St. Louis Railway, with all of its rights of way, road-bed, depots, depot grounds, and all of its rights, franchises, and property, ought to be sold to make assets to pay its indebtedness and liabilities; and that the proceeds of said sale ought to be brought into court, with leave to all parties herein, and all other lienholders who may come in and become parties to the proceedings before the final hearing thereof, to establish their several claims, demands, and liens, and the respective lien of each, and the priority of the same, as a lien upon the proceeds of said sale. And the court further finds that said railroad property ought to be sold free and discharged of all liens and incumbrances, and the rights of all such lienholders and creditors ought to be transferred to the fund arising from such sale.” These provisions of themselves make it plain that the court found that all the parties in court at the time the decree was entered were the holders of liens, but, if these provisions left any doubt upon the question, it would be removed by a provision in a subsequent part of the decree, which reads as follows: “And the court hereby reserves for its future consideration the consideration and determination of the amount of said claims and liens, and the respective lien of each, and the priority of the same as a lien upon the proceeds of the sale.” One question is settled by this decree, namely, that all the parties have liens. Two questions are left undetermined, namely, the amount of the respective liens, and their priority. This decree was not objected to in any mode, but, on the contrary, was acquiesced in by the parties, and, as it was made upon a trial pursuant to the express agreement of the parties, it is conclusive upon them as to the questions tried and determined. It is said that the decree is interlocutory, and therefore not conclusive. We are not inclined to regard it as a mere interlocutory decree, inasmuch as it was made after the submission of the cause for trial, and after hearing the evidence, and is, in its nature, final, rather than interlocutory. It may not, perhaps, be true that it is final in such a sense as that an appeal would lie from it; but it has in many respects the qualities and effect of a final decree. But conceding, for the sake of the argument, that it is a mere interlocutory decree, still it must be held that as to this case, and upon the questions submitted for trial, and after trial fully adjudicated, it is final and conclusive. Ray v. Law, 3 Cranch, 179;Morey v. King. 49 Vt. 304. In the case of Fleenor v. Driskill, 97 Ind. 27, this doctrine is carried much beyond the limits to which we carry it in this instance. We add, to prevent misconception, that we neither hold, nor mean to hold, that the decree in this instance was beyond change by the court while the proceedings were in fieri, nor do we hold that it would have constituted a conclusive adjudication had no final decree been rendered. All that we can with propriety decide is that, as to this particular case, it is conclusive because rendered after trial, and followed, without change, by a final decree.

The questions which remain for decision are those not adjudicated by the decree which we have considered and to which we have given a construction. The first of these questions arises upon the contention of the appellant that the appellees are subcontractors, and as such are bound to take payment in bonds for the reason that the principal contractors agreed to accept bonds in payment. It is probably true that one who in strictness occupies the position of a subcontractor is bound to accept payment as provided in the principal contract. Stewart v. Wright, 52 Iowa, 335, 3 N. W. Rep. 144;Lumber Co. v. Murphy, 64 Iowa, 165, 19 N. W. Rep. 898;Stout v. Golden, 9 W. Va. 231;McKnight v. Washington, 8 W. Va. 666;Bowen v. Aubrey, 22 Cal. 566;Henley v. Wadsworth, 38 Cal. 356; Reeve v. Elmendorf, 38 N. J. Law, 125; Campbell v. Scaife, 1 Phila. 187. But the conclusion asserted by appellant requires another premise to make it valid, and that premise is that laborers and material-men are subcontractors. This premise is assumed by appellant's counsel without proof, and we regard the assumption as an illicit one, for we do not believe that a laborer working by the the day, or a material-man who delivers ties or lumber, is a subcontractor, within the meaning of our lien law. We suppose a subcontractor to be one who takes from the principal contractor a specific part of the work, as, for instance, one who agrees with the principal contractor to construct 10 miles of a railroad out of a line of 20 or more miles, which the principal contractor had undertaken to build. Certainly, no other conclusion will harmonize with the doctrine long maintained by this court. Barker v. Buell, 35 Ind. 297;Colter v. Frese, 45 Ind. 96. Other courts have, more clearly than our own, marked and enforced the distinction between subcontractors and laborers, as well as between subcontractors and material-men. Duncan v. Bateman, 23 Ark. 327;Huck v. Gaylord, 50 Tex. 578;Pitts v. Bomar, 33 Ga. 96. If, however, we are wrong in holding that laborers and material-men are not subcontractors within the meaning of our statute, still the appellant cannot succeed upon the point under immediate discussion. To entitle it to succeed, even upon its own theory of the law, it must show a proper tender of bonds; otherwise the claims of the lienors are payable in money, for money is the ordinary medium of payment, and is always demandable where there is no agreement providing for payment in property, as well as where there is such an agreement, but no tender by...