Hennessey v. Breed, Elliott And Harrison, Inc.
| Decision Date | 30 January 1931 |
| Docket Number | 12,692 |
| Citation | 176 N.E. 251,92 Ind.App. 165 |
| Parties | HENNESSEY ET AL. v. BREED, ELLIOTT AND HARRISON, INCORPORATED |
| Court | Indiana Appellate Court |
From LaPorte Circuit Court; John C. Richter, Judge.
Suit by Breed, Elliott and Harrison, Incorporated, to foreclose liens for sewer assessments against property owned by John C Hennessey and his wife, Kate Hawley Hennessey. From a personal judgment against John C. Hennessey and a decree foreclosing the liens of the several assessments, the defendants appealed.
Affirmed.
Frank E. Osborn, Lee L. Osborn, Kenneth D. Osborn and Alfred J Link, for appellants.
Joseph M. Milner, Herman W. Sallwasser, Norman H. Sallwasser and Milton J. Sallwasser, for appellees.
On October 25, 1922, Breed, Elliott and Harrison, Incorporated, appellee herein, commenced this action in the LaPorte Circuit Court, against John C. Hennessey and Kate Hawley Hennessey, his wife, appellants, and also against Joseph Hickey and Rose C. Simcox. During the proceedings in the court below, the cause was dismissed as to Joseph Hickey. A judgment by default was entered against Rose C. Simcox and the cause was thus terminated as to her.
The complaint was in one paragraph for the foreclosure of municipal assessment liens for sewer assessments, on account of Main Trunk Sewer number 20, against certain real estate owned by the appellants and located in the city of LaPorte, Indiana, the final assessment roll for which improvement was approved by the common council of said city on May 27, 1912 and delivered to its department of finance for collection. It is alleged in the complaint that the appellants signified their intention to pay their assessments in 10 annual installments and entered into an agreement in writing that they would make no objection to any illegality or irregularity with regard to said assessments against their said property and would pay the same as required by law, with the specified interest, which agreement was filed in the office of said department of finance; that thereafter the department of finance issued to the contractor who made said improvement, or to bearer, improvement bonds covering the amount of said assessments, which said bonds were transferred by said contractor or bearer to the appellee, and that the same are still owned by the appellee. It is further alleged that the appellants wholly failed and neglected to pay the installment of principal and interest which became due on the first Monday of May, 1913, and that a 15-day notice was served by the owner of said liens upon the defaulting property owner, whereupon the whole assessment became due and payable. The complaint further alleges that the defendants, John C. Hennessey and Kate Hawley Hennessey, "are personally liable on account of the waiver so signed by them," and asks the court that the liens of said assessments against said real estate be enforced and foreclosed against all defendants, and that said real estate be ordered sold to satisfy said liens and that there be a personal judgment also against said defendants Hennessey and Hennessey, together with interest, attorney's fees and costs and all proper relief.
On the day of trial, February 5, 1924, and just before entering upon the trial, the plaintiff, under leave of court and over the objection of the defendants, filed in court the waiver heretofore mentioned, whereupon the Hennesseys moved the court to require the plaintiff to separate its complaint into two paragraphs and number the paragraphs, which motion was denied by the court to which ruling, the said Hennesseys separately and severally excepted. They then filed their separate answers to the complaint in five paragraphs, the first being a general denial, the second a plea of payment, the third the five-year statute of limitations as to the foreclosure of the lien, the fourth the 10-year statute of limitations as to a personal judgment and the fifth the five-year statute of limitations to the complaint generally. Upon the issues thus joined, the court found for the plaintiff, against defendants John C. Hennessey and Kate Hawley Hennessey, decreed a foreclosure of the liens set out in the complaint, and ordered the property described in the complaint as belonging to the Hennesseys sold in parcels to make the amount found against each lot, and the surplus, if any, left after the payment of said assessments, interest and costs, to be paid into court for the use of the party entitled thereto. The further judgment of the court is: "It is further ordered adjudged and decreed by the court that the plaintiff recover in this action the sums respectively found to be owing on the several lots against said lots respectively, and that, in case the property described in the complaint as belonging to the said defendants, John C. Hennessey and Kate Hawley Hennessey, does not sell for enough to pay the amounts found due and owing and covered by the liens against the said several lots respectively and costs, that then the sheriff should levy the remainder on the goods of the said John C. Hennessey and sell the same to make up the deficiency arising from the sale of the lots."
Judgment in form as above set out, was rendered below on March 25, 1925, and, on April 20, the Hennesseys filed separate motions for a new trial, which were identical except as to their names. Each contained 10 reasons and grounds: (1) The finding of the court is not sustained by sufficient evidence; (2) the finding of the court is contrary to law; (3) the decision of the court is not sustained by sufficient evidence; (4) the decision of the court is contrary to law; (5) error in the assessment of the amount of recovery, in this, the amount is too large; (6) the assessment of the amount of recovery against the said defendant, John C. Hennessey, is erroneous, being too large; (7) the court erred in permitting plaintiff to file in said cause the paper, marked "Plaintiff's Exhibit 1," being the waiver signed by John C. Hennessey; (8) the court erred in permitting plaintiff to introduce in evidence the paper marked "Plaintiff's Exhibit 1," being the waiver signed by John C. Hennessey; (9) the court erred in entering a personal judgment against the defendants; (10) the court erred in decreeing a foreclosure of the lien, mentioned in plaintiff's complaint, against the defendants. November 6, 1925, each motion for a new trial was overruled by the court, to which rulings the said Hennesseys separately and severally excepted and an appeal was prayed to this court.
The errors relied upon for reversal are: (1) The court erred in overruling the motion of John C. Hennessey for a new trial; (2) the court erred in overruling the motion of the appellant, Kate Hawley Hennessey, for a new trial; (3) the court erred in permitting plaintiff to file in court the waiver signed by John C. Hennessey over the objection of the appellants; (4) the court erred in overruling defendant's motion to require plaintiff to separate and number its complaint into two paragraphs.
The appellants say that the court erred in ordering a foreclosure of the assessment liens and argue that the statute of limitations has run against that part of this action. The appellants also say that the court erred in rendering a personal judgment against John C. Hennessey In both of these contentions, we think appellants are wrong.
John C. Hennessey executed the waiver heretofore mentioned. The waiver so executed by him and filed with the department of finance of the city of LaPorte, together with the waivers executed by other property owners affected by said improvement and assessed therefor, formed the basis of the bond issue for said improvement. These bonds are the bonds owned by the appellee. The waiver signed by John C. Hennessey was the usual one under the statute and, like other such waivers, accomplished three things, namely: (1) Secured the privilege to the property owner to pay the assessments in 10 annual installments; (2) it waived all illegalities and irregularities with reference to the proceedings creating the liens; and (3) it contained the promise of John C. Hennessey to pay said assessment liens as required by law. (It will be noted that Kate Hawley Hennessey did not sign the waiver.)
This waiver was executed by John C. Hennessey on July 26, 1912. The first default occurred on the first Monday in May, 1913, at which time there was a default in the semi-annual interest due at that time. The complaint was filed in the action on October 25, 1922, and summons issued thereon on October 25, 1922.
It is true that the waiver heretofore mentioned as having been executed by John C. Hennessey is the written instrument upon which alone there is authority to base a personal judgment against him in this action. It is also true that § 386 Burns 1926, (Acts 1881 p. 240) provides that, "When any pleading is founded on a written instrument or on account the original or a copy thereof must be filed with the pleading." While it is true that the plaintiff did not file the waiver in question with its complaint, yet the record shows that, on the day of trial and before starting the trial, leave was asked of the trial court to file same and leave granted, after which it was introduced in evidence. It is true that the defendants Hennessey and Hennessey both objected in each instance and reserved their exceptions to the rulings of the court. The granting of leave to file the waiver by the trial court was within the sound discretion of the trial court and we find no abuse of the court's discretion. See C. H. Maloney & Co. v. Whitney (1919), 71 Ind.App. 157, 124 N.E. 496. We hold that the filing of the waiver amounted to an amendment of the complaint. But the appellants say that if we...
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