Pritchard v. Mines

• Decision Date: 09 March 1916
• Docket Number: 8,904
• Citation: 111 N.E. 804,61 Ind.App. 203
• Parties: PRITCHARD ET AL. v. MINES ET AL
• Court: Indiana Appellate Court

111 N.E. 804

61 Ind.App. 203

PRITCHARD ET AL. v. MINES ET AL

No. 8,904

Court of Appeals of Indiana

March 9, 1916

From Morgan Circuit Court; Nathan A. Whitaker, Judge.

Action by James E. Mines and another against Leona Pritchard and others. From a judgment for plaintiffs, the defendants appeal.

Affirmed.

Clarke & Clarke and Means & Buenting, for appellants.

S. C Kivett and Bailey and Young, for appellees.

OPINION

CALDWELL, J.

Appellees brought this action against appellants to recover for the breach of a bond hereinafter described, of which appellants were obligors and appellees obligees. The following facts among others appear from the complaint: Under date of March 24, 1910, appellants, Carl C. and Leona Pritchard, husband and wife, entered into a contract in writing with appellees James E. and Anna Mines, husband and wife by which the former agreed to exchange a certain lot owned by them, situate in the city of Indianapolis, for certain farming lands, owned by the latter, situate in Orange County. By the terms of the contract, the appellants bound themselves to make certain extensive improvements on two dwelling houses situated on the lot, and to convey such real estate to appellees by warranty deed and free of liens. It is alleged that subsequently and in order to induce the consummation of the exchange of real properties before the completion of the improvements on the Indianapolis real estate, the appellants, as principals, and appellant, Walter J. Hubbard, as surety, entered into an undertaking or bond in writing in the penal sum of $ 2,000, made payable to appellees, as obligees, and conditioned for the completion of such improvements as agreed. On the execution of the bond, appellees by warranty deed conveyed the Orange County land to appellants, Pritchard and Pritchard, and the appellants executed their warranty deed, conveying the Indianapolis property, appellee James E. Mines, alone being named as grantee by consent of all the parties, including Anna Mines. The breach of the bond alleged is to the effect that Pritchard and Pritchard, in making the improvements, contracted an indebtedness for labor and materials aggregating $ 2,108.41, which they failed to pay, whereby notices of liens were filed under the statute, and that to prevent the foreclosure of such liens and the consequent sale of the Indianapolis property, appellee James E. Mines, to protect his title, was compelled to pay and did pay the sum of $ 2,108.41, whereby appellees demand judgment in that sum. The cause having been placed at issue by the filing of answers and replies, a trial by jury resulted in a verdict in favor of appellees and against appellants in the sum of $ 1,630, on which judgment was rendered.

Each appellant separately assigns error to the following effect: That the court erred, (1) in overruling the motion for judgment on the answers of the jury to interrogatories; (2) in overruling the motion for a new trial. All questions discussed under the second assignment, and to which points are directed in appellants' brief, depend on the evidence. Appellees insist that the evidence is not in the record, and that as a consequence, appellants, under the second assignment, have presented no question for our consideration. Appellees are right in such contention. The record is as follows: September 13, 1913, being at the September term of court, judgment having theretofore been rendered on the verdict, the court overruled the respective motions for a new trial, and granted ninety days within which to file all bills of exception. December 3, 1913, at the November term, the trial court, without requiring notice to appellees or their attorneys of an application to that end, as required by statute, entered an order purporting to extend the time within which to file all bills of exception to January 12, 1914. The bill of exceptions containing the evidence was filed January 7, 1914, after the expiration of the time first granted. Under such circumstances, the order purporting to grant a re-extension of time was ineffective, and the bill of exceptions containing the evidence is not a part of the record. It follows that no question is presented under the second assignment. § 661 Burns 1914, Acts 1911 p. 193; English v. English (1915), 182 Ind. 675, 107 N.E. 547; Richmond Light, etc., Co. v. Rau (1915), 184 Ind. 117, 110 N.E. 666.

As to the first assignment, the answers of the jury to the interrogatories are to the effect that certain named persons performed labor and furnished materials in the making of the improvements on the Indianapolis property, and that their respective claims were in certain designated amounts. There are other answers that the Pritchards conveyed the Indianapolis property to James E. Mines, who subsequently conveyed it to a third person, who thereafter conveyed to appellee, Anna Mines, and that all the claims mentioned in the complaint were paid by check. There is no interrogatory directed to the question of who drew the checks or who in fact paid the claims. It seems to us apparent without elaboration that the answers to the interrogatories are not inconsistent with the general verdict. It is argued under the first assignment that the court erred in overruling the motion under consideration for the...