Hayes v. Shirk

• Decision Date: 03 October 1906
• Docket Number: No. 20,802.,20,802.
• Citation: 78 N.E. 653,167 Ind. 569
• Parties: HAYES et al. v. SHIRK.
• Court: Indiana Supreme Court

167 Ind. 569

78 N.E. 653

HAYES et al.

v.SHIRK.

No. 20,802.¹

Supreme Court of Indiana.

Oct. 3, 1906.

Appeal from Circuit Court, Fulton County; Harry Bernetha, Judge.

Action by William J. Hayes and others against Milton Shirk, continued after his death against Ellen W. Shirk, his executrix. There was a judgment for defendant, and plaintiff appeals. Cause transferred from Appellate Court under Burns' Ann. St. 1901, § 1337u. Reversed and remanded.I. Conner, Kirkpatrick & Morrison, and Willits & Voorhis, for appellants. Antrim & McClintic and Holman & Stephenson, for appellee.

HADLEY, J.

Appellant instituted this action against Milton Shirk to recover a personal judgment upon contract. Before answer was filed Milton Shirk died. His death being suggested, Ellen W. Shirk, his executrix, was substituted as the sole party defendant, and filed a separate demurrer to the additional second and third paragraphs of the complaint. The demurrers were sustained, and, the plaintiffs refusing to amend, judgment was, on April 27, 1904, rendered against them for cost. On February 13, 1905, more than 100 days, but within one year, after the rendition of said judgment, the record of this appeal was filed in the Appellate Court. No appeal bond was filed within 10 days from the rendition of said judgment, and no order of the Appellate, or this court was made within one year after such decision granting the appeal. Upon the foregoing facts appellee makes the point that the appeal herein should be dismissed, because not taken in compliance with sections 2609, 2610, Burns' Ann. St. 1901. This contention calls upon us to decide whether the appeal is governed by sections 644, 645 of the Civil Code (Burns' Ann. St. 1901, pp. 304, 306), or by the special provisions of the decedents' estates act (sections 2609, 2610, supra), which require all appeals “growing out of any matter connected with a decedent's estate” to a perfected within a hundred days unless otherwise ordered by the court. This action had its origin in these facts. Milton Shirk, as executor of E. H. Shirk, held the record title to certain lots abutting on Kentucky street, in the city of Kokomo. In the improvement of this street, under the Barrett law, assessments of special benefits were lodged against the lots, and Milton Shirk as executor of E. H. Shirk, executed a written waiver of irregularities, and promised to pay the assessments, and secured thereby, for the estate of E. H. Shirk, the right to pay the assessments in 10 annual installments.

Appellants, as the owners of the defaulted bonds issued against said lots for the improvement, foreclosed, and sold the lots, and not realizing enough to pay the costs, and full amount of the assessments, instituted this action on said contract of waiver against Shirk in his individual capacity, to recover the balance. It is manifest that the decision complained of did not “grow out of any matter connected with decedent's estate” but out of an alleged breach of contract with Milton Shirk. The suit was an ordinary action at law under the Code. The circuit court had acquired jurisdiction of the person, and subject-matter, in the lifetime of Shirk, and his death did not defeat that jurisdiction. Section 272, Burns' Ann. St. 1901, provides that “no action shall abate on the death of a party,” but the court shall, upon motion, allow the action to proceed by or against the representative of the deceased party. Under this statute, it has been held, in cases where an executor or an administrator has been substituted for a deceased party, that an appeal in such case will be governed by the Civil Code, and not by the special provisions of the act relating to the settlement of decedent'sestates. Holland v. Holland, 131 Ind. 196, 200, 30 N. E. 1075;May, Ex'x v. Hoover, 112 Ind. 455, 14 N. E. 472, and cases cited. This appeal having been perfected within one year after the rendition of the judgment, must be held timely.

Appellee further contends that there is nothing for decision, because the complaint upon which the only question arises, and also the final judgment, are not in the record. What purports to be the additional second and third paragraphs of the complaint-those to which the demurrers were sustained and a final judgment-are present in the record, and it is claimed that they are not properly there because not called for in the præcipe, nor certified by the clerk. After properly entitling the cause the præcipe directs the clerk to “prepare and properly certify for use on appeal to the Appellate Court, a transcript of the following papers, orders, and proceedings, filed and had in said cause. First, the entry of said cause upon the issue docket at page 209. *** Fifth, the entry at page 101 of Order Book 6, Sixth, at page 152 of same Order Book, and also at page 175 of same Order Book. Seventh, the entry at page 246 of the same Order Book. Eighth, at page 279 of the same Orber Book. Ninth, at page 285 of the same Order Book. Tenth, this præcipe, together with the second and third paragraphs of the plaintiff's complaint, the demurrers thereto, the rulings thereon, and exceptions thereto.” The clerk certifies “that the above and foregoing transcript contains full, true, and complete copies of the following papers, orders, and proceedings filed, and had in said cause,” and appearing on the particular pages, set forth in detail, of Order Book 6, as designated by the præcipe. In the transcript so certified, at the proper place, appears the copy of the final judgment, entitled, and in terms, in conformity to the previous rulings of the court. It is true that the final judgment is not called for, in terms, but the entries in said cause, appearing on certain pages of the Order Book, are, and the præcipe, though informal and unskillfully drawn, was sufficient, we think, to warrant the clerk in transcribing the entry of the final judgment, if the same was found on one of the pages designated, and, as the copy of the judgment is present in the record, we must presume that it was so found. It is claimed that the record discloses that amended second and third paragraphs of complaint were filed, and that the calling for the second and third paragraphs of the complaint did not authorize the clerk to insert in the transcript copies of the amended paragraphs. It is shown by the record that these pleadings were originally filed as additional, second, and third paragraphs of the complaint, and were then and thereafter, in every step of the proceedings, so denominated. There were no such papers as amended second and third paragraphs of complaint filed. In the preparation of the transcript, however, some one, in entering the marginal notes required by the rules of this court, on appropriate pages, noted in red ink, on the left margins as follows: “2nd Par. Amended Complaint”; “3rd Par. Amended Complaint”; and these memoranda furnishes the only ground for the claim that amended second and third paragraphs of complaint were filed. It is hardly necessary to add that these marginal notes were not part of the record, and serve no other purpose than point the examiner to the particular contents of the pages. Giving to the statute concerning præcipes and transcripts in appeals (section 7, c. 193, p. 340, Acts 1903), a liberal construction, as we must, and there remains no doubt but the præcipe in question is sufficient to sustain the controverted parts of this record.

Appellee further and very earnestly contends that this appeal should not be considered, because of appellant's noncompliance with the requirements of the fifth division of rule 22 (55 N. E. vi), in the preparation of their brief, in that they failed to set forth the contents of their complaint. By the provision invoked, the appellant is required in his brief to give “a concise statement of so much of the record as fully presents every error and exception relied on.” The first paragraph of complaint was dismissed, and the case comes up solely upon the sufficiency of the second and third paragraphs to state a cause of action against Milton Shirk, personally, based upon his written agreement as executor of E. H. Shirk (under the Barrett law), to waive all irregularities, and pay the assessment in consideration of the right to pay the same in 10 annual installments. The paragraphs are alike, except that the second is silent as to whether Shirk was authorized by the will, or by the court, to execute said agreement, and the third expressly charges that he was not authorized either by the will, or by the court, to execute it. In ruling on the demurrers, the court held that, in executing the agreement as executor, he did not make himself personally liable. This ruling of the court is the only “error and exception relied on.” So much of the record, then, as fully presents this question, is all that is required by the rule. When the question arises upon the pleading, it is seldom necessary, under the rule, to set out the particular pleading in full, though it may be done without violating the rule. It is however, always highly proper to omit useless matter, and it may be said that the most accurate compliance with the rule is realized when there is carried into the brief only such averments, and parts as will enable the judge, not having the record before him, to fully grasp and understand the controverted...