Hayes v. Johnson

• Decision Date: 12 May 1914
• Docket Number: No. 8543.,8543.
• Citation: 105 N.E. 164,56 Ind.App. 238
• Parties: HAYES et al. v. JOHNSON.
• Court: Indiana Appellate Court

56 Ind.App. 238

105 N.E. 164

HAYES et al.

v.JOHNSON.

No. 8543.

Appellate Court of Indiana, Division No. 1.

May 12, 1914.

Appeal from Circuit Court, Jay County; Daniel W. Comstock, Special Judge.

Action by Lawrence Hayes, administrator of the estate of John Hayes, Sr., and others against Benjamin Johnson. From a judgment for defendant, plaintiffs appeal. Affirmed.J. F. Denney and Wheeler Ashcraft, both of Portland, for appellants. Frank B. Jaqua, of Washington, D. C., and W. F. McGinnitie, of Portland, for appellee.

HOTTEL, J.

This is an appeal from a judgment in favor of appellee in a suit brought by appellants to collect from him the amount of a sewer assessment and to foreclose the lien of such assessment against appellee's property.

There was a complaint in one paragraph, a demurrer to which was overruled. The appellee filed a cross-complaint and an answer in three paragraphs, the first of which was a general denial. A demurrer to said cross-complaint, and to the second and third paragraphs of answer were each overruled. Appellants filed a reply in estoppel to the third paragraph of answer and a like paragraph of answer to the cross-complaint. A motion for new trial filed by appellants was overruled.

The errors assigned by appellants are: (1) Overruling appellants' demurrer to the third paragraph of answer; (2) overruling appellants' demurrer to the cross-complaint; (3) error in the statement of each of the conclusions of law; and (4) overruling appellants' motion for a new trial.

Appellee assigns as cross-error that the court erred in overruling his demurrer to the complaint, and insists that, the complaint being bad, intervening errors are harmless, and the judgment must be affirmed.

[1] In support of his contention that the complaint is bad, it is insisted by appellee that it shows a partnership to have existed between those appellants suing in their capacity as individuals and one John Hayes, Sr., who had died before the commencement of this action; that Lawrence Hayes was appointed administrator of the estate of John Hayes, Sr., deceased, and as such administrator joined with such other appellants and brought this action, when the debt sued for was one that belonged to the partnership and the action should have been brought by the surviving partner, or partners; that the complaint at least fails to show a cause of action in favor of the administrator; and that for this reason, if no other, the demurrer thereto should have been sustained. Appellants' counsel, in his oral argument, conceded that if the facts averred in the complaint be sufficient to show such partnership, the demurrer thereto should have been sustained, but insists, in effect, that such averments do not show a partnership, and that, even if they did, any error on account of the ruling on such demurrer was waived or obviated by appellant joining in a request for a special finding of facts, because the conclusions of law on the facts found present the same question that arose on such demurrer, and hence any ruling on the demurrer is rendered harmless.

We first inquire whether the complaint does in fact show such partnership. Its averments affecting such question are as follows: “At the time of the letting of the contract for the construction of the Wilson sewer by the city of Dunkirk, Ind., to John Hayes & Sons, as hereinafter alleged, the said firm of John Hayes & Sons was composed of the plaintiff, Lawrence Hayes, William Hayes, John Hayes, Jr., James Mulvahill, and John Hayes, Sr.; that thereafter, and before the bringing of this action, the said John Hayes, Sr., died intestate in Jay county, Ind., and that said plaintiff, Lawrence Hayes was by said Jay circuit court appointed as the administrator of the estate of said John Hayes, Sr., and that said Lawrence Hayes is now the duly and legally qualified and acting administrator of the estate of said decedent; *** that said plaintiffs, in the name and style of John Hayes & Sons, gave bond to said city for the faithful performance of said work, and did construct and build said sewer,” etc. The reasonable, if not the necessary, inference to be drawn from the averments just quoted is that the individual appellants and their deceased father were members of a common firm or partnership, which “in the name and style of John Hayes & Sons was awarded the contract for the construction of the sewer for which the assessment herein sought to be recovered was levied. To say the least, the complaint fails to show a cause of action in Lawrence Hayes, administrator, and, being bad as to him, it is bad as to all. McIntosh v. Zaring, 150 Ind. 301, 312, 49 N. E. 164, and cases cited.

[2][3] As a general rule, where it appears on appeal that the appealing parties were plaintiffs below, and that their complaint did not state facts sufficient to uphold a judgment had one...