Kirkpatrick Const. Co. v. Cent. Elec. Co.

• Decision Date: 08 January 1903
• Parties: KIRKPATRICK CONST. CO. v. CENTRAL ELECTRIC CO. et al.
• Court: Indiana Supreme Court

159 Ind. 639

65 N.E. 913

KIRKPATRICK CONST. CO.

v.CENTRAL ELECTRIC CO. et al.

Supreme Court of Indiana.

Jan. 8, 1903.

Appeal from circuit court, Hancock county; E. W. Felt, Judge.

Action by the Central Electric Company and others against the Kirkpatrick Construction Company. From a judgment in favor of plaintiffs, defendant appeals. Transferred from the appellate court under Burns' Rev. St. 1901, § 1337u (Acts 1901, p. 590). Affirmed.

Elmer J. Binford and A. H. Brier, for appellant. George W. Duncan and Marsh & Cook, for appellees.

MONKS, J.

This action was brought by appellant against appellees to have a judgment rendered by a justice of the peace in favor of the Central Electric Company against appellant adjudged null and void, and to enjoin its enforcement. The cause was tried by the court, a special finding of facts made, and conclusions of law stated thereon against appellant. The judgment followed the conclusions of law.

It appears from the special finding that the Central Electric Company, by its attorney, on March 6, 1901, filed a complaint before Vinton A. Smith, a justice of the peace of Center township, Hancock county, Ind., against appellant, a corporation organized under the laws of this state, whose principal office was in said Center township, demanding a judgment on account for $100 for goods, wares, and merchandise sold and delivered by said Central Electric Company to appellant at its special instance and request; that thereupon said justice of the peace, on March 6, 1901, issued a summons for Christian Kirkpatrick and Elmer J. Binford to appear before him at his office on March 15, 1901, at 9 o'clock in the forenoon, to answer the complaint of said Central Electric Company, wherein the sum of $100 was demanded. This summons, which was the only one issued in said cause, was served the same day by a constable of said township upon said Kirkpatrick and Binford, by reading, and returned to said justice of the peace. Afterwards, on the same day, the Central Electric Company, by its attorney, served a notice to take depositions on behalf of said company in said cause on said Elmer J. Binford, who, in writing, acknowledged service thereof, and waived dedimus and certificate of official character of the officer before whom the same were to be taken, signing his name thereto, “Elmer J. Binford, Attorney for Defendant;” that the cause of action was entitled in said notice, “Central Electric Company vs. The Kirkpatrick Construction Company.” Said depositions were taken pursuant to said notices on March 11, 1901, and afterwards filed in the office of said justice of the peace. Afterwards, on March 15, 1901, a like notice was given by the plaintiff in said cause, and service thereof acknowledged in like manner and character by said Binford. Said Kirkpatrick Construction Company was not present, and took no part in the taking of any of said depositions. After the first-mentioned notice to take depositions was served, and before the day set for the trial of said cause, the attorney for the Central Electric Company, at the office of the justice of the peace before whom said cause was pending, stated to said justice and said Binford, who was present, that he desired to publish said depositions, and handed them to said Binford for inspection and examination. Binford inspected the package and envelope containing said depositions, and made no objections to the publication thereof. Said depositions were thereupon, on motion of the attorney for the plaintiff in said cause, published, and the envelope containing the same torn open, in the presence of said justice and said Binford. Afterwards, on March 15, 1901, at 9 o'clock a. m., being the day and hour set for the trial of said cause, said justice of the peace stated in the presence of said Binford that Mr. Duncan, the attorney of the Central Electric Company, who was present, desired continuance of said action, and said Binford thereupon said that it did not matter when it was tried, and that said Duncan could have all the time he desired, so far as he was concerned; that the justice of the...