Huffman v. State ex rel. Barton

• Decision Date: 07 December 1917
• Docket Number: No. 9406.,9406.
• Citation: 117 N.E. 874,66 Ind.App. 105
• Parties: HUFFMAN v. STATE ex rel. BARTON.
• Court: Indiana Appellate Court

66 Ind.App. 105

117 N.E. 874

HUFFMAN

v.STATE ex rel. BARTON.

No. 9406.

Appellate Court of Indiana, Division No. 2.

Dec. 7, 1917.

Appeal from Circuit Court, Huntington County; Samuel E. Cook, Judge.

Action by the State, on relation of James M. Barton, against Elijah Huffman. Judgment for plaintiff, and defendant appeals. Reversed.Charles R. Haller, of Huntington, for appellant. Charles E. Sturgis and Robert W. Stine, both of Buffton, for appellee.

IBACH, C. J.

This is a suit on two bonds executed by appellant to the board of commissioners of Wells county, Ind., pursuant to section 7723, Burns 1914, in connection with the improvement of certain highways in that county. Appellee furnished gravel which was used in the construction of the roads, and this action was brought to recover the price of said gravel.

The complaint is in four paragraphs. Demurrers to the first and second and to the third and fourth paragraphs, respectively, were overruled and the issues were closed by general denial. A demand for jury trial was withdrawn, and a trial by the court resulted in a judgment in favor of appellee.

[1] Numerous errors are assigned, but the controlling questions are: (1) Can a materialman recover on a bond executed for the purpose and conditioned as the bonds in suit for material furnished and used in the construction of these roads? (2) Did the court err in refusing to grant appellant a change of venue from the county? The first question must be answered in the affirmative. Holthouse v. State ex rel., 49 Ind. App. 178, 182, 97 N. E. 130;Faurote v. State ex rel., 110 Ind. 463, 466, 11 N. E. 472;State ex rel. v. Rowles, 177 Ind. 682, 98 N. E. 722;Robling v. Board, etc., 141 Ind. 522, 525, 40 N. E. 1079.

The bonds in question were executed pursuant to the requirement of section 7723, supra, and accepted by the board. The contracts were let and the improvements completed thereunder. The same principle of law here involved was involved in each of the above cases, and further discussion is deemed unnecessary. As particularly applicable we quote the language of Judge Mitchell in Faurote v. State ex rel., supra, at page 467 of 110 Ind., page 475 of 11 N. E.:

“These provisions of the statute become part of the bond, giving to it the same force and effect as if they had been written therein. They constitute the contract upon which the sureties have a right to stand, and by which their liability is to be determined. By this contract the sureties guaranteed that the contractor should promptly pay all debts incurred by him, and it gave to any laborer, materialman, or person furnishing board to the contractor, and having a claim against him therefor, a right of action on the bond.”

This case was followed and approved in State ex rel. v. Rowles, supra.

The affidavit upon which the change of venue was requested and refused was filed on June 28, 1915, the day on which the cause was set for trial, and, omitting caption and signature, reads as follows:

“Comes now Charles R. Haller, attorney for the defendants in the above-entitled cause, and makes this affidavit for the said defendants and at the express request and direction of the defendant, Elijah Huffman, who is ill and unable to be at the session of this court and is confined at his home, 16 miles distant from this court and the place of its session. The affiant on behalf of the defendants would represent that they cannot have a fair and impartial trial of said cause in Huntington circuit court for the reason that an odium attaches to the defendants' cause of defense on account of local prejudice. The affiant further represents that this is a civil action, and this affidavit is made and filed at the earliest possible moment after the facts...