Harting v. Vandalia Coal Co., 7,856.

• Docket Nº: No. 7,856.
• Citation: 50 Ind.App. 98, 98 N.E. 132
• Case Date: April 03, 1912
• Court: Court of Appeals of Indiana

50 Ind.App. 98

98 N.E. 132

HARTING

v.VANDALIA COAL CO.

No. 7,856.

Appellate Court of Indiana, Division No. 1.

April 3, 1912.

Appeal from Circuit Court, Knox County; Orlando H. Cobb, Judge.

Action by Lena Harting against the Vandalia Coal Company. From a judgment on the sustaining of a demurrer to the complaint, plaintiff appeals. Reversed and remanded, with directions.Riddle & Hendren, for appellant. John T. & Will H. Hays, for appellee.

FELT, C. J.

Appellant brought this action against the appellee in the Greene circuit court to recover damages for the death of her husband while in the employ of appellee. A demurrer to appellant's amended complaint was overruled, and a change of venue taken to the Knox circuit court. After the trial was begun, the case was taken from the jury, the ruling on the demurrer to the amended complaint reconsidered, and the demurrer sustained. Appellant refused to plead further, and now appeals from the judgment rendered against her.

[1] The error assigned and relied upon is “sustaining the demurrer to the amended complaint.” Appellee insists that the assignment presents no question for decision by this court. The record entry showing appellant's exception to the ruling on the demurrer is as follows: “This court now sets aside the submission of this cause to the jury and reconsiders the former ruling, overruling the demurrer to the amended complaint, and this court now sustains said demurrer to the amended complaint herein, to all of which the plaintiff objects and excepts.”

It is the contention of appellee that the setting aside of the submission of the cause to the jury, the reconsideration of the ruling on the demurrer to the amended complaint, and the sustaining of said demurrer, constitute three separate affirmative acts of the court; that appellant's exception is joint, and her separate assignment of error presents no question.

The rule in regard to exceptions taken in gross has been somewhat relaxed from its former strictness, and a more liberal rule is now applied.

In Whitesell v. Stickler, 167 Ind. 602, 78 N. E. 845, 119 Am. St. Rep. 524, several defendants joined in a separate and several demurrer which was overruled, “to which ruling of the court the defendants object and except.” On appeal each made a separate assignment of error which was questioned, but held sufficient, and some former decisions holding to the contrary disapproved. On page 609 of 167 Ind., on page 847 of 78 N. E. (119 Am. St. Rep. 524), the court said: “In identifying the question appealed, it is plain that the rules of procedure should be strictly construed, in fairness to the trial court, if for no better reason, but, as in this case, when two or more persons desire to take the same step, but to act separately, and for convenience unite in presenting one paper, and the court by a single action rules against all, the exceptions to the ruling as recorded by the clerk should be liberally construed with a view of according an appropriate exception to each exceptor. And such exception should be allowed unless incompatible with the record. When an appellant excepts to a ruling for the purpose of presenting it to a court of review, it should at least be presumed that his exception was intended to be in the capacity and relation that would make it effective.”

In Honey v. Guillaume, 172 Ind. 552, on page 555, 88 N. E. 937, on page 938, it is stated: “It may be said, with respect to such matters, that when the record clearly shows what was intended by the court and parties a party cannot be deprived of his right of exception by the inapt use of words by the court in announcing a ruling, or the clerk in recording the same. Whitesell v. Stickler (1907) 167 Ind. 602 , 119 Am. St. Rep. 524;Bessler v. Laughlin (1907) 168 Ind. 38, 79 N. E. 1033;Bedford Quarries Co. v. Bough (1907) 168 Ind. 671 , 14 L. R. A. (N. S.) 418.”

The question in the case at bar is different from that in the foregoing cases, but the principle involved is the same and the liberal rule announced is equally applicable here. In some of those cases it was a question of an apparent joint exception by several parties, and a separate assignment of error by each; while here it is a question of an apparent joint exception to several acts followed by an assignment based upon only one of those acts.

We do not understand the foregoing cases to abrogate the rule that where there is a joint exception to several distinct acts or conclusions of the court upon which error may be predicated, clearly shown by the record, that an assignment of error as to one of such acts presents no question on appeal. Davis v. Seybold, 27 Ind. App. 510, 61 N. E. 743;Terre Haute & Indianapolis R. R. Co. v. McCorkle, 140 Ind. 613-616, 40 N. E. 62; P. C. C. & St. L. Ry. Co. v. Wilson, 34 Ind. App. 324, 72 N. E. 666. The rule still holds that it is the same questions that were ruled upon by the trial court, presented here in substantially the same way, that were reviewable on appeal.

But the later decisions are not so exacting in holding strictly to form where the court can from the record ascertain that the assigned error does in fact present the identical question ruled upon by the trial court, though defective in statement. In this case it is apparent from the record that the ruling upon the demurrer was the one act of the court to which exception was taken and relied upon as error by appellant, and that it was so understood by appellee.

The withdrawal of the submission and the further consideration of the demurrer were but preliminary steps to the ruling upon the demurrer. We do not hold that error may not in some instances be predicated upon the action of the court in setting aside the submission of a cause after trial has begun, but here there is nothing in the order book entry showing the action of the trial court and appellant's exception thereto to indicate any act harmful to appellant other than that of sustaining the demurrer, unless it be the form or inapt language of the entry. Form without substance is of no avail. Here no reason appears for setting aside the submission, except that it was a proper preliminary step to the ruling upon the demurrer, which act, if erroneous, was the one harmful to appellant. We therefore hold that the assignment presents the question of the sufficiency of the amended complaint.

The amended complaint charges, in substance, that appellee is and was on February 6, 1907, an Indiana corporation...