Knowlton v. Smith

• Decision Date: 04 October 1904
• Docket Number: No. 20,396.,20,396.
• Citation: 163 Ind. 294,71 N.E. 895
• Parties: KNOWLTON v. SMITH.
• Court: Indiana Supreme Court

163 Ind. 294

71 N.E. 895

KNOWLTON

v.SMITH.

No. 20,396.

Supreme Court of Indiana.

Oct. 4, 1904.

Appeal from Circuit Court, Jay County; John M. Smith, Judge.

Action by John W. Smith against Charles F. Knowlton. Defendant appeals from an order denying the prayer of his complaint asking that a judgment rendered against him be set aside. Transferred from the Appellate Court under section 1337u, Burns' Ann. St. 1901. Reversed.

James J. Moran, for appellant. Adair & La Follette, for appellee.

JORDAN, C. J.

Appellee instituted an action in the Jay circuit court in February, 1903, against appellant, to foreclose a mechanic's lien for work and labor performed on a certain building and fence situated in Dunkirk, Jay county, Ind. Appellant failed to appear to the action, and on March 3, 1903, a judgment was rendered against him on default for $42.50, and a foreclosure of a mechanic's lien was decreed against the property described in the complaint. On the 22d day of March, 1903, at the same term of court, he filed his duly verified complaint to set aside the default, and to be relieved of the judgment which had been rendered against him. The application was based on section 399, Burns' Ann. St. 1901, and section 396, Horner's Ann. St. 1901, which provides, among other things, that the court “shall relieve a party from a judgment taken against him through his mistake, inadvertence, surprise or excusable neglect,” etc. Upon hearing the complaint, the court denied the prayer thereof, and refused to set aside the default, or in any manner to relieve appellant from the judgment rendered. He appeals, and seeks a review of the action of the court in denying him relief.

At the very threshold we are confronted with a motion upon the part of appellee to dismiss this appeal on the grounds that the judgment rendered upon the default, exclusive of interest and costs, does not exceed $50, and therefore the appeal is forbidden by the provisions of an act of the Legislature approved and in force March 9, 1903 (Acts 1903, p. 280, c. 156). By this act, section 6 of an act approved March 12, 1901 (Acts 1901, p. 566, c. 247, section 1337f, Burns' Ann. St. 1901), was amended. Said section, as originally enacted, provided that “no appeal shall hereafter be taken to the Supreme Court or the Appellate Court in any civil case which is within the jurisdiction of a justice of the peace, except as provided in section 8 of this act.” By the amendatory act of 1903, section 6 was changed to read as follows: “No appeal shall hereafter be taken to the Supreme Court or Appellate Court in any civil case where the amount in controversy exclusive of interest and costs, does not exceed $50, except as provided in section 8 of this act.” By the provisions of section 8-the same being section 1337h, Burns' Ann. St. 1901-all cases which fall within the prohibition of section 6 as originally enacted, and as it now stands since the amendment thereof, were, and are now, excepted therefrom in the following cases: Where there is a question duly presented involving either the validity of a franchise, or the validity of an ordinance of a municipal corporation, or the constitutionality of a statute, state or federal, or the proper construction of a statute. Such cases, under section 8 (1337h), supra, are made exceptions to section 6, and appeals therein are permitted to be taken direct to the Supreme Court, but, as section 8 declares, “for the purpose of presenting such questions only.” Under the plain provisions of section 6, supra, as originally enacted, an appeal was denied in any case which came within the jurisdiction of a justice of the peace, unless it fell within some of the exceptions enumerated in section 8 (§ 1337h), supra. The gravamen of the action wherein appellant was defaulted was to foreclose a mechanic's lien. That was the paramount issue, and the essential relief sought and obtained. Ascertaining the amount due to the plaintiff in the action for the work and labor performed upon the building and fence, and rendering judgment thereon, was but incidental to the principal relief demanded and secured, viz., the foreclosure of a mechanic's lien. Field v. Brown, 146 Ind. 293, 45 N. E. 464, and cases cited. Of course, in order to obtain a foreclosure of the lien, it was necessary for the plaintiff to be awarded a recovery at least of a part of the indebtedness secured thereby. An action to enforce a mechanic's lien is in the nature of a suit to foreclose a mortgage, and, under the laws of this state, is not one which comes within the jurisdiction conferred upon a justice of the peace. Ainsworth v. Atkinson, 14 Ind. 538;Snell v. Mohan, 38 Ind. 494;Albrecht v. C. C. Foster Lumber Co., 126 Ind. 318, 26 N. E. 157, and cases cited. In fact, an action to foreclose a mechanic's lien is, under the statute, exclusively lodged in the circuit or superior court. Section 7259, Burns' Ann. St. 1901. As jurisdiction to foreclose the lien in controversy was not within that conferred upon the justice of the peace, the right of appeal was not affected by the provisions of section 6 (§ 1337f), supra, as originally passed. Therefore the case at bar belonged to the appealable class at and after the enactment of that section. Having reached this conclusion, the question then arises, is the right of appeal cut off by the section as amended by the act of 1903? We are clearly of the opinion that this question must be answered in the negative. The purpose of this amendatory act evidently was to broaden the right of appeal, instead of further abridging it, as it existed at the time of the amendment. Counsel for appellee earnestly contend that as the amount of money recovered in the action in which appellant was defaulted is shown by the judgment to be less than $50, and as the case does not fall within any of the exceptions of section 8, supra, an appeal therein to the Appellate Court is forbidden under the provisions of section 6 as amended. We have seen that under section 6, prior to the amendment thereof, the denial of an appeal in a civil action was tested by the jurisdiction conferred by law upon a justice of the peace. By the section as amended, the right of appeal is denied “in any civil case where the amount in controversy, exclusive of interest and costs, does not exceed $50,” except as provided in section 8. In all cases falling within the provisions of this section, where there is recovery awarded the plaintiff, with which he is satisfied, and there is no set-off or counterclaim, the judgment rendered in the lower court must be deemed and held on appeal to be the amount in controversy, within the meaning of the section in question. Cincinnati, etc., Ry. Co. v. McDade, 111 Ind. 23, 12 N. E. 135; Ex parte A. M. Sweeney, Clerk, 126 Ind. 583, 27 N. E. 127. As previously asserted, the essential or primary purpose of the principal action was to foreclose a mechanic's lien and not solely for the recovery of money. Section 6, as amended, must be construed as applying to civil cases wherein the essential or primary object is to recover a money judgment in the alleged cause of action. Smith v. American, etc., Co., 160 Ind. 141, 65 N. E. 524. This was the interpretation of the exception in section 644, Burns' Ann. St. 1901 (section 632, Horner's Ann. St. 1901), whereby appeals were denied in actions...