Moore-Mansfield Const. Co. v. Marion, Bluffton & Eastern Traction Co.

• Decision Date: 04 March 1913
• Docket Number: No. 7,998.,7,998.
• Citation: 52 Ind.App. 548,101 N.E. 15
• Parties: MOORE-MANSFIELD CONST. CO. v. MARION, BLUFFTON & EASTERN TRACTION CO. et al.
• Court: Indiana Appellate Court

52 Ind.App. 548

101 N.E. 15

MOORE-MANSFIELD CONST. CO.

v.MARION, BLUFFTON & EASTERN TRACTION CO. et al.

No. 7,998.

Appellate Court of Indiana, Division No. 2.

March 4, 1913.

Appeal from Circuit Court, Huntington County; S. E. Cook, Judge.

Action by the Moore-Mansfield Construction Company against the Marion, Bluffton & Eastern Traction Company and others. Judgment for defendants, and plaintiff appeals. Reversed, with directions.

Wm. A. Ketcham, of Indianapolis, and Lesh & Lesh, of Huntington, for appellant. Abram Simmons and Frank C. Dailey, both of Bluffton, for appellees.

LAIRY, J.

The appellant filed its complaint in the Huntington circuit court, by which it sought to recover from appellees a large sum of money alleged to be due it on various claims arising out of the construction of an electric interurban railway. Each of appellees filed separate answers in abatement, to which separate demurrers by appellant were addressed and overruled. The issues were closed by a reply in general denial to each paragraph of the answer in abatement. A trial resulted in a judgment in favor of appellees on such answers.

The answer in abatement by the Bluffton & Marion Construction Company is in two paragraphs, the first of which is similar in its essential averments, to the one paragraph of answer filed by the other appellee. Each of these paragraphs appear to the court to state facts sufficient to constitute a cause for the abatement of the action; and, as appellanthas not called our attention to any specific defect, they will be deemed sufficient to withstand a demurrer.

It is claimed on behalf of appellant that the evidence is not sufficient to sustain these paragraphs, and that the result of this appeal depends upon a decision of the question thus presented. This question must be determined from a consideration of the evidence in connection with the answers in support of which it was admitted. These answers aver, in substance, that, prior to the commencement of this action, appellant brought an action in the circuit court of Huntington county, Ind., against the two appellees in this action, alleging the same cause of action against them as is set out in the complaint filed in this case. It is further alleged that the parties to the action previously filed are the same as the parties to this action, and that the same is still pending in said court and is undetermined.

The evidence adduced at the trial consisted entirely of records and documents, being the pleadings and other papers filed in the former case, and the order book entries made therein. It seems to be conceded by appellant that the complaint filed in the action referred to in appellees' answers in abatement states the same cause of action stated by the complaint in the case at bar; the only difference being that the complaint in the former action stated facts upon which a mechanic's lien was asserted, and that it asked a foreclosure of such lien. It is also conceded by appellant that, since the decision of the Supreme Court of this state in the case of Indianapolis, etc., Co. v. Brennan et al., 174 Ind. 1, 87 N. E. 215, 90 N. E. 65, 68, 91 N. E. 503, 30 L. R. A. (N. S.) 85, the complaint in question does not state facts sufficient to show a lien in favor of appellant, or to entitle it to a foreclosure; that it states only a cause of action for damages for breach of contract, work, and labor done and materials furnished; and that, so considered, the issues tendered by the complaint in the action previously filed are identical with those tendered by the complaint in this action. The evidence also shows that the plaintiff in the former action, on the 30th day of August, 1909, dismissed his action against the defendants in vacation, and that at the next term the court, over the objections of the defendants, entered a judgment dismissing plaintiff's cause of action, as set out in its complaint without prejudice, and awarding to defendants their costs. It thus appears that the issues joined upon the complaint and the answers thereto were withdrawn from the consideration of the court before the commencement of this action, and that no cause of action, based on the issue presented by the complaint, was pending at the time this action was commenced.

Appellee states that appellant had no right to dismiss his complaint, as he did, at the time and under the circumstances disclosed by the record introduced in evidence. The evidence shows that issues were formed in the former action by the defendant's filing an answer in eight paragraphs, the first of which was a general denial, and the last of which was a set-off, and by a general denial to the affirmative paragraphs of answer and to the set-off. The case was then referred to a master commissioner to take testimony and report his findings to the court. At the time this reference was made, the court and the attorneys were treating the case as one for foreclosure of a subcontractor's lien. After the court had made the order dismissing plaintiff's cause of action, as stated in its complaint, the commissioner, to whom the case had been referred, filed his report with the court finding upon all of the issues made by the pleadings. The plaintiff unsuccessfully objected to the filing of this report, and afterward moved to strike it from the files, which objection was overruled. Afterward the plaintiff filed exceptions to the report of the master commissioner; and, so far as the evidence in this case shows, the exceptions so filed were pending at the time the answers in abatement were filed in this case.

[1][2] We will first consider the right of plaintiff to dismiss the cause of action stated in the complaint. Under the common-law practice, a plaintiff, in an action at law, had a right to dismiss his action at any time before verdict; but in a suit in equity the complainant did not possess a similar right, the privilege being granted or withheld by the chancellor. A dismissal was allowed in cases where it would work no hardship or injustice to the defendant; but the right was denied where, in the opinion of the chancellor, the defendant would be injured by the termination of the suit, or where the dismissal would be inequitable. This rule still seems to prevail in states where the common-law pleading and practice are adhered to, and where it has not been changed by statute. Electrical, etc., Co. v. Brush, etc., Co. (C. C.) 44 Fed. 602;Chicago, etc., R. Co. v. Union Rolling Mill Co., 109 U. S. 713, 3 Sup. Ct. 594, 27 L. Ed. 1081;Watt v. Crawford, 11 Paige (N. Y.) 470. In jurisdictions where the common law prevails, it has been held that no dismissal will be allowed in equity after an order of reference has been made. Pullman Car Co. v. Central Transp. Co. (C. C.) 49 Fed. 261; Briscoe v. Brett, 2 Ves. & B. 377; Wyatt v. Sweet, 48 Mich. 539, 12 N. W. 692, 13 N. W. 525.

By an application of this rule, and on the authorities cited in its support, appellees insist that the plaintiff in the former action had no right to dismiss the cause of action stated in the complaint, and that for this reason we must regard it as still pending. This position cannot be maintained. Under the provisions of our Code, there is no distinctionin pleading and practice between actions at law and suits in equity. Burns 1908, § 249. This statute does not abridge the power of the court to grant equitable relief; neither does it change the rules of law or the principles of equity, as applied in determining the substantial rights of parties; but in some instances it does change the form of procedure by which the remedy is obtained. Emerick v. Miller, 159 Ind. 317, 64 N. E. 28;Terre Haute, etc., Co. v. State, 159 Ind. 438, 65 N. E. 401.

The section of our Code, heretofore cited, provides that there shall be but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which is denominated a civil action. A statute providing for the dismissal of actions, enacted after the adoption of the Code, must be held to apply to a civil action, regardless of whether the relief sought is legal or equitable. Burns 1908, § 338, provides that an action may be dismissed without prejudice, by the plaintiff, before the jury retires, or, when the trial is by the court, at any time before the finding of the court is announced. The next succeeding section provides for a dismissal in vacation. The distinction contended for by appellees has never been recognized in this state, and the provisions of the statute have been frequently invoked in the dismissal of actions which, prior to the enactment of the Code, were of exclusive equitable jurisdiction. Beard v. Becker, 69 Ind. 498;Burns v. Reigelsberger, 70 Ind. 522.

[3] The report of the commissioner was not the finding of the court. A master commissioner is not a court; and judicial duties, which courts alone can exercise, cannot be conferred upon him. Terre Haute, etc., Co. v. State, 159 Ind. 438-481, 65 N. E. 401;Shoultz v. McPheeters, 79 Ind. 373.

At the time of the dismissal of the cause of action stated in the complaint in the former action, the commissioner had prepared his report, and, at the request of counsel, had...