Ferguson v. Despo

• Decision Date: 24 June 1893
• Citation: 8 Ind.App. 523,34 N.E. 575
• Parties: FERGUSON et al. v. DESPO.
• Court: Indiana Appellate Court

8 Ind.App. 523

34 N.E. 575

FERGUSON et al.

v.DESPO.

Appellate Court of Indiana.

June 24, 1893.

Appeal from circuit court, Lawrence county; R. W. Myers, Judge.

Action by Alfred O. Despo against Francis M. Ferguson, Emma Ferguson, and Mary Ferguson, as partners. Cummings & Conner, partners, and the Cincinnati & Bedford Railway Company, to recover for supplies furnished and services rendered Cummings & Conner, as subcontractors, and to enforce a mechanic's lien. From a judgment for plaintiff, defendants Ferguson and the railway company appeal. Reversed as to Fergusons, and affirmed as to the railway company.

M. F. Dunn, for appellants. C. R. Hasely and Herod & Herod, for appellees.

REINHARD, J.

We are asked to dismiss this appeal, or affirm the judgment, on the ground of an alleged defect in the assignment of errors. The amended assignment in the title of the cause leaves out the name of one of the appellants. In the body of the assignment, however, the names of all the parties are given, thus: “The above-named appellants [naming each of them] file this, their amended assignment of errors, making their codefendants below in the Lawrence circuit court [naming them] coappellees with said other appellee, Alfred O. Despo, for the reason that said [naming the coappellees] have not joined in this appeal, and assign additional errors.” Then follow the separate assignments of errors. We regard the assignment as sufficient. The assignment of errors is the appellants' complaint in this court. It must contain the names of all the parties to the appeal, and a failure makes the assignment fatally defective. Elliott, App. Proc. § 322. This is likewise required of a complaint under the Code. Rev. St. 1881, § 338. But it has been held that the omission to give the names of the parties in the title may be supplied by naming them in the body of the complaint. Ammerman v. Crosby, 26 Ind. 451; 1 Work, Pr. §§ 344, 345.

Despo brought this action against the appellees Cummings & Conner, partners, and the appellants Francis M., Emma, and Mary Ferguson, partners, and the Cincinnati & Bedford Railway Company. The substance of the complaint is that in November, 1889, the Fergusons, as partners, entered into a contract with the said railway company for the construction of the railroad track and bridges of said company, or certain parts thereof; that, by the contract, the Fergusons were to erect and construct the abutments, piers, and masonry work for a certain bridge over the East Fork of White river, near Bedford, in Lawrence county, Ind., as a part of said railway; that the Fergusons contracted with Cummings & Conner for the construction of the stonework and masonry for such bridge; that Cummings & Conner entered upon the work, and completed it according to the agreement; that Despo furnished Cummings & Conner goods and merchandise on account of and necessary to the building and construction of said stonework and masonry, to the amount of $918.44, at the special instance and request of said Cummings & Conner; that such work and labor and materials were performed, furnished, and used in the erection and construction of said stonework and masonry of said bridge; that, at the time Cummings & Conner commenced said work on said bridge, they contracted with said Despo to act as foreman and manager for them in the erection and construction of said stonework and masonry of said bridge, at the agreed price of $100 per month during the time said Cummings & Conner were engaged in said work; that Despo performed all his duties as such foreman or manager from November 25, 1889, until June 20, 1890, but that he only received $116 in all for his labor, and that there yet remains due him $504, which is wholly due and unpaid, although payment has been demanded of each and all the defendants for all of said sums, (plaintiff files herewith an itemized statement of account, marked “Exhibit At;”) that on the 19th day of August, 1890, and within 60 days of the time of furnishing said materials and performing said work, plaintiff filed in the office of the recorder of Lawrence county, Ind., notice of his intention to hold a lien on the property of said railway company, which notice was duly recorded on the 19th day of August, 1890, and a copy of which is filed herewith, marked “Exhibit B.” Wherefore plaintiff prays judgment against the several defendants above named in the sum of $2,500, for the foreclosure of said mechanic's lien, and for a sale of the railway property, together with all the appurtenances thereunto belonging within said county of Lawrence, and all proper relief. The itemized account and copy of lien notice are filed as Exhibits A and B. Among the specifications of errors following the title of the cause and the statement hereinbefore set out, containing the names of appellants and appellees, is the following: “(4) Francis M. Ferguson, Mary Ferguson, and Emma Ferguson, and each of them, say that the court erred in overruling their separate and joint demurrer to the complaint of the appellee.” The next assignment is as follows: “(5) Francis M. Ferguson, Mary Ferguson, and Emma Ferguson, for themselves, and each for himself and herself, says that the complaint does not contain facts sufficient to constitute a cause of action against them, or either of them.” The record shows the filing of the following demurrer, omitting the caption and title: “(4) Francis M. Ferguson, Mary Ferguson, and Emma Ferguson, each for themselves, separately and severally, as well as for himself and herself, jointly, demur to...