Indianapolis Outfitting Co. v. Cheyne Elec. Co.

• Decision Date: 21 January 1913
• Docket Number: No. 7,803.,7,803.
• Citation: 100 N.E. 468,52 Ind.App. 153
• Parties: INDIANAPOLIS OUTFITTING CO. v. CHEYNE ELECTRIC CO.
• Court: Indiana Appellate Court

52 Ind.App. 153

100 N.E. 468

INDIANAPOLIS OUTFITTING CO.

v.CHEYNE ELECTRIC CO.

No. 7,803.

Appellate Court of Indiana, Division No. 2.

Jan. 21, 1913.

Appeal from Superior Court, Marion County; U. Z. Wiley, Special Judge.

Action by the Cheyne Electric Company against the Indianapolis Outfitting Company. Judgment for plaintiff, and defendant appeals. Affirmed.Wm. E. Reiley and Charles W. Appleman, both of Indianapolis, for appellant. Charles Alcon and H. L. Wynegar, both of Indianapolis, for appellee.

LAIRY, J.

This case originated in a justice of the peace court of Marion county, and was appealed to the Marion superior court, where the judgment from which this appeal is taken was rendered in favor of appellee for the sum of $199.86. This action was brought to recover for materials furnished and labor performed by appellee for appellant; and, in the justice's court, the complaint proceeded upon the theory that the material furnished and labor performed was at the special instance and request of the defendant, and sought to recover the reasonable value of the material and labor so furnished. After the case reached the superior court, the plaintiff, by leave of court, filed a second paragraph of complaint, alleging an express contract and seeking to recover thereon. Each of these paragraphs demanded $200. After the second paragraph was filed, the defendant made a motion to dismiss the action upon the ground that the court had no jurisdiction of the subject-matter, which motion the court overruled, and thereupon the plaintiff dismissed the second paragraph of his complaint. The case proceeded to trial, and judgment was rendered upon the complaint originally filed before the justice of the peace.

[1] If there was error in the ruling of the court on the motion to dismiss the action, such error was rendered harmless by the subsequent proceeding of the court. A judgment will not be reversed on account of an error which, as shown by the record, did not prejudice the substantial rights of the party complaining. Vulcan Iron Works Co. v. Electric, etc., Co. (1912) 99 N. E. 429, and cases there cited.

[2] Upon the trial of the case, the court permitted the bookkeeper of the plaintiff, over the objection of the defendant, to refer to entries made by him in a ledger kept by him in the regular course of plaintiff's business. From the testimony of this witness, it appears that he had no personal knowledge of the amount of the material furnished or the...