Jackson v. State ex rel. Bd. of Com'rs of Huntington Cnty.

• Citation: 142 N.E. 1,194 Ind. 130
• Decision Date: 11 January 1924
• Docket Number: No. 24038.,24038.
• Parties: JACKSON et al. v. STATE ex rel. BOARD OF COM'RS OF HUNTINGTON COUNTY.
• Court: Supreme Court of Indiana

194 Ind. 130

142 N.E. 1

JACKSON et al.

v.STATE ex rel. BOARD OF COM'RS OF HUNTINGTON COUNTY.

No. 24038.

Supreme Court of Indiana.

Jan. 11, 1924.

Appeal from Superior Court, Allen County; Carl Yaple, Special Judge.

Action on a bond of a firm of contractors by the State, on the relation of the Board of Commissioners of Huntington County, against Amos L. Jackson and others. The court made conclusions of law favoring the relator, to which each defendant excepted. Affirmed.

W. H. Eichhorn and John H. Edris, both of Bluffton, for appellants.

Lucas & Spencer, of Huntington, for appellee.

EWBANK, C. J.

This was an action on the bond of a firm of contractors to recover damages because of their failure to complete a free gravel road in Huntington county that was ordered constructed under the “three mile act” as then in force. Section 7719, Burns' 1908; Acts 1907, c. 46, p. 68, § 1. The greater part of the length to be improved was north of the Salamonie river, and was comparatively level, while the short distance south of the river was laid out to pass through a hill in a deep cut that would require five times as much excavation as the longer distance at the north end. All of the highway, after being properly graded, was to be metaled with gravel to a depth as stated. That part north of the river was completed according to contract, and the contractors had received more than half of the agreed price, when they quit work, in July, 1913, stating that they could not finishuntil a proposed bridge across the Salamonie river should be completed. The bridge was put in during the spring and summer of the next year, and after the contractors had been notified repeatedly to complete the work under their contract, and after the bridge had stood for 20 months, and after the contractors had notified the board of commissioners that they would not complete the road, suit was brought on their bond.

[1][2] Of the six defendants the record does not disclose that any but the two contractors, who were the principals in the bond, filed answers to the complaint. What purports in its recitals to be an answer of denial by “the defendants and each of them” is set out on page 42 of the transcript, but the order book entry which precedes it and under which it purports to be incorporated in the transcript states only that “the defendants Jackson and Gordon now file a reply of general denial to the answer in two paragraphs to cross-complaint of said defendants Jackson and Gordon herein in these words.” This entry follows other entries showing that an answer and cross-complaint had been filed by Jackson and Gordon, and that a reply to the answer and an answer to the cross-complaint had been filed by the plaintiff. Recitals in a pleading filed by two defendants as a reply to the answer to their cross-complaint, after the issue on their answer to the complaint had been closed by a reply thereto, could not give effect to such pleading as an answer to the complaint on behalf of all six of the defendants. Appellants seem to rely on a docket entry, copied on page 26 of the transcript, stating that “the defendants Amos L. Jackson and James O. Gordon now file second paragraph of answer herein in these words. Not on file in this office. Kent Sweet, Clerk”-and on the fact that the pleading set out 16 pages later, under the record entry stating that Jackson and Gordon filed a reply, as stated above, purports also to contain a “second paragraph of answer to the complaint” by said Jackson and Gordon. But the transcript discloses that a demurrer to the second paragraph of answer thus shown to have been filed was sustained, and that the defendants Jackson and Gordon immediately filed a “third paragraph of answer,” on which issue was joined. We must presume in favor of the action of the clerk in omitting such second paragraph from the transcript at the place where it is shown to have been filed that the “third paragraph” so filed was a mere amendment of the second paragraph, and that the second paragraph thereby ceased to be a necessary part of the record on appeal, nothing being shown to the contrary. Ætna Ins. Co. v. Indiana Nat. L. Ins. Co. (Ind. Sup.) 133 N. E. 4, 22 A. L. R. 402; section 691, Burns' 1914; section 650, R. S. 1881. The only pleadings presented for our consideration are the three paragraphs of the complaint, the third...