Jesswein v. Lasalle State Bank, 15075.

• Citation: 101 Ind.App. 79,198 N.E. 101
• Decision Date: 08 November 1935
• Docket Number: No. 15075.,15075.
• Parties: JESSWEIN et al. v. LASALLE STATE BANK et al.
• Court: Court of Appeals of Indiana

101 Ind.App. 79

198 N.E. 101

JESSWEIN et al.

v.LASALLE STATE BANK et al.

No. 15075.

Appellate Court of Indiana, in Banc.

Nov. 8, 1935.

Appeal from Superior Court, St. Joseph County; J. Fred Bingham, Judge.

Action of mandamus by the State, on the relation of the LaSalle State Bank, against George Hepler and others, as commissioners of St. Joseph county, and others wherein Gottfried Jesswein and another filed a petition of intervention. From a judgment denying their petition to intervene, interveners appeal and relator moves to dismiss the appeal.

Motion to dismiss overruled, and judgment affirmed.Orie Parker and Joseph J. Kovacs, both of South Bend, for appellants.

Potts & Rieder, of South Bend, for appellees.

DUDINE, Chief Judge.

The State of Indiana, on relation of appellee LaSalle State Bank, instituted this action against the other named appellees to mandate said commissioners, auditor, and treasurer of St. Joseph county to pay to appellee LaSalle State Bank a balance of $655 due a certain rock road contractor for construction of a road improvement under a contract entered into by and between said contractor and appellee commissioners, and which balance appellee LaSalle State Bank claimed by virtue of an assignment allegedly executed to it by said contractor.

Appellants filed a petition to intervene, which was denied, whereupon appellants filed an amended petition to intervene.

In said amended petition appellants alleged:

“That during the course of said construction these petitioners furnished to the said contractor forty-three hundred sixty-eight (4,368) yards of gravel for which the contractor agreed to pay these petitioners the sum of Six Hundred Fifty-five Dollars Twenty Cents ($655.20) which was the value of said gravel thus furnished at said time and that said sum is still due and unpaid.

“That in due course of the construction of said road by said contractor, said quantity of gravel furnished by these petitioners was properly certified by the engineer and by said contractor as being correct and the Board of County Commissioners was informed before the acceptance of said work of the amount of gravel furnished by these petitioners and of the amount of their bill and said Board of County Commissioners set aside and appropriated for the payment of said bill the said sum of Six Hundred Fifty-five Dollars Twenty Cents ($655.20) out of the moneys appropriated for the construction of said highway.”

Said petition further alleged that the board of county commissioners stood ready to order a warrant to be issued to the petitioners, but refrained from doing so because one Merlin T. Calif claimed said money, and after it was finally determined by a decision of this court that Calif had no interest in said fund, then appellee LaSalle State Bank claimed the money and instituted this proceeding. The petition prays that appellants be made party defendants in the cause.

The court denied appellants' amended petition to intervene, reserving an exception to appellants.

The issues being closed by a general denial, the cause was submitted to the court for trial without the intervention of a jury, and the court found for appellee LaSalle State Bank, and rendered judgment that appellee auditor execute his warrant in said amount payable to the bank and that appellee treasurer honor and pay the warrant upon proper presentation.

The record, after showing said finding and judgment, proceeds as follows: “And now the petitioners Gottfried Jesswein and Augusta Jesswein pray an appeal to the Indiana Appellate Court on the adverse ruling of the court on their petition to intervene in this cause, which appeal is hereby granted by the court. ***”

Thereupon this appeal was perfected, the errors assigned and discussed in appellants' brief being: (1) Error in overruling said amended petition to intervene; (2) error in refusing the application of appellants to be made parties defendant.

Appellee LaSalle State Bank has filed a motion to dismiss this appeal on the ground that the questions presented are moot.

In support of its said motion, appellee avers that the remedy sought in the cause was a writ of mandate; that the writ prayed for has been issued; that the money has been paid to appellee LaSalle State Bank; and that no other funds due said contractor on said contract are being withheld by said board of commissioners.

[1] The motion to dismiss the appeal refers to the wrong “judgment.” The motion refers to the judgment on the issues between appellee LaSalle State Bank as plaintiff,...