Ferguson v. Despo
| Decision Date | 24 June 1893 |
| Docket Number | 929 |
| Citation | 34 N.E. 575,8 Ind.App. 523 |
| Parties | FERGUSON ET AL. v. DESPO ET AL |
| Court | Indiana Appellate Court |
From the Lawrence Circuit Court.
Judgment and decree of the court against the Cincinnati and Bedford Railway Company affirmed, and judgment against Francis M. Ferguson, Mary Ferguson and Emma Ferguson reversed.
M. F Dunn, for appellants.
W. W Herod and W. P. Herod, for appellees.
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 co-defendants below in the Lawrence Circuit Court (naming them) co-appellees with said other appellee, Alfred O. Despo, for the reason that said (naming the co-appellees) 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 appellant's 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's App. Proced., section 322.
This is likewise required of a complaint under the code. R. S. 1881, section 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 Works Pr. and Pl., sections 344, 345.
Despo brought this action against the appellees, Cummings and Conner, partners, and the appellants, Francis M., Emma, and Mary Ferguson, partners, and the Cincinnati and 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, Indiana, as a part of said railway; that the Fergusons contracted with Cummings and Conner for the construction of the stone work and masonry for such bridge; that Cummings and Conner entered upon the work and completed it according to the agreement; that Despo furnished Cummings and Conner goods and merchandise on account of, and necessary to, the building and construction of said stone work and masonry to the amount of $ 918.44, at the special instance and request of said Cummings and Conner; that such work and labor and materials were performed, furnished, and used in the erection and construction of said stone work and masonry of said bridge; that at the time Cummings and 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 stone work and masonry of said bridge at the agreed price of $ 100 per month, during the time said Cummings and 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 A." That on the 19th day of August, 1890, and within sixty days of the time of furnishing said materials and performing said work, plaintiff filed in the office of the recorder of Lawrence county, Indiana, 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:
The next assignment is as follows:
The record shows the filing of the following demurrer, omitting the caption and title:
The demurrer is signed by the attorney for defendants.
The record further shows that "the demurrers heretofore filed are, by the court, overruled, and to this ruling the defendants each except."
Counsel for appellee Despo insist that these assignments, and the demurrer and rulings thereon, do not present any question which this court can consider as a separate error against the Fergusons.
After a careful consideration of the question, we have come to the conclusion that the same is properly presented. The point we are to decide, therefore, is whether the complaint states a cause of...
To continue reading
Request your trial