Lengelsen v. McGregor

• Decision Date: 26 May 1903
• Citation: 162 Ind. 258,67 N.E. 524
• Parties: LENGELSEN v. McGREGOR et al.
• Court: Indiana Supreme Court

162 Ind. 258

67 N.E. 524

LENGELSEN

v.McGREGOR et al.¹

Supreme Court of Indiana.

May 26, 1903.

Appeal from Circuit Court, Posey County; Wm. Louden, Special Judge.

Suit to foreclose a mechanic's lien, brought by William McGregor and other against Louis Lengelsen and another. From the judgment rendered, Edward Lengelsen appeals. Transferred from the Appellate Court under section 1337u, Burns' Rev. St. 1901.

Louis I. Ahlering, for appellant. F. P. Leonard, for appellees.

HADLEY, J.

Suit by appellees to foreclose mechanic's lien. It is averred in the complaint that the defendants are indebted to the plaintiffs in the sum of $478 for building material sold and delivered to the defendants by the plaintiffs, and work and labor performed, at the defendants' special instance and request, which is specifically set forth in a bill of particulars filed with the complaint; that the last of such materials was furnished and said work and labor performed on June 25, 1900; that said material, work, and labor were furnished by plaintiffs to defendants and were used by them to erect a brick building on certain described real estate in Posey county; that plaintiffs caused notice of lien to be recorded, etc. Louis Lengelsen made default, and appellant Edward Lengelsen answered by general denial.Trial by court, finding and personal judgment against Louis, and foreclosure of lien against both in the real estate described in the complaint. Edward alone prosecutes this appeal. He assigns for error: (1) The insufficiency of the complaint to constitute a cause of action; (2) the overruling of specification 3 of his motion to modify the judgment; and (3) the overruling of his motion for a new trial.

The first assault upon the complaint is made in this court. At this late date it is incumbent upon the appellant to point out some infirmity in the complaint that is incurable by the presumptions that arise from the court's finding against him, from the overruling of his motion to modify the judgment, and the overruling of his motion for a new trial. Uncertainty and inadequacy of averment that might have been cured by motion timely made will now be deemed as waived, and nothing short of a showing that the complaint is fatally defective from the total absence of averment of some fact essential to the existence of the cause of action will now authorize the reversal of the judgment founded thereon. South Bend v. Turner, 156 Ind. 418, 60 N. E. 271, 54 L. R. A. 396, 83 Am. St. Rep. 200;Shoemaker v. Williamson, 156 Ind. 384, 59 N. E. 1051;Smith v. Smith, 106 Ind. 43, 45, 5 N. E. 411.

Appellant admits that the complaint is good so far as to support a personal judgment, but argues that the court's finding that he was not liable to a personal judgment is equivalent to a finding that he made no contract for the materials and work and labor sued for, and without a contract and personal liability there can be no lien, except when the plaintiff sues as a subcontractor, in which event his complaint must show that fact, and that there was a contract between the principal contractor and the defendant, and that something is due the plaintiff from his employer. By this argument appellant seeks to place himself in a better situation than he confessedly would have been in if he had demurred to the complaint in the court below. The complaint charges against appellant and his brother Louis a joint liability both to a personal judgment and lien on the property described, and, because appellant succeeded in his defense as to a personal liability, it by no means follows that his property was not justly chargeable by some agreement or principle of equitable estoppel. The character of the proof has nothing to do with the sufficiency of the complaint. So far as the foundation of the action is concerned, it must stand or fall upon its own merits. The complaint is sufficient to support the proceedings and judgment constructed upon it.

It is insisted by appellees that there is no further question presented, because the evidence upon which all the remaining ones depend is not in the record. The transcript discloses that appellant's motion for a new trial was overruled on March 15, 1901, and 60 days given him in which to file bills of exception. On May 13, 1901, appellant, having prepared his bills of exception No. 1 and No. 2-the latter containing the evidence-went to the residence and chambers of the trial judge for the purpose of presenting said bills for approval, and, finding that the judge was absent from the state, he caused each of said bills to be filed in the clerk's office and indorsed by the clerk as follows: “Now, here comes Edward Lengelsen, by Louis J. Ahlering, his attorney, and presents and files this bill of exceptions No. 2 for filing this 13th day of May, 1901. On account of the absence of Judge William Louden from the state, his signature to this bill of exceptions cannot be obtained. Paul Maier, Clerk.” And immediately following is the further entry: “And now here the defendant Edward Lengelsen tenders this, his bill of exceptions No. 2, on the 4th day of June, 1901, and prays that the same may be signed, sealed, and made a part of the record, which is accordingly done on the 4th day of June, 1901. And I, William Louden, do hereby certify that I was absent from the state of Indiana continuously from the 20th day of April, 1901, until the 2d day of June, 1901. William Louden, Judge pro tempore Posey Circuit Court.” A further entry shows a filing of the bills in the office of the clerk on June 4, 1901. There is no pretense that the bills were actually presented to the judge within the time allowed, but appellant insists that, having been granted a specified time in which to prepare and present them, and having prepared them and done all in his power to present them within the limit, he should not be deprived of their benefit by the judge so absenting himself from the state that his signature could not be obtained. The argument is not without force if addressed to the lawmaking body, but we have no power to change a law, or condemn it, because its provisions seem to us harsh and inequitable. The right of appeal is not an absolute right. It is granted or withheld at the pleasure of the Legislature; hence that body, in conferring the right of appeal, has the undoubted power to fix the terms upon which the right may be enjoyed. One of the terms fixed is that “th...