Terre Haute & I.R. Co. v. Baker

• Decision Date: 12 March 1890
• Citation: 122 Ind. 433,24 N.E. 83
• Parties: Terre Haute & I. R. Co. v. Baker.
• Court: Indiana Supreme Court

122 Ind. 433

24 N.E. 83

Terre Haute & I. R. Co.

v.Baker.

Supreme Court of Indiana.

March 12, 1890.

Appeal from circuit court, Carroll county; L. B. Sims, Judge.

John G. Williams and S. O. Bayless, for appellant. Applegate & Pollard, for appellee.

Coffey, J.

This was an action by the appellee against the appellant to recover for work and labor. The complaint in the cause, omitting the formal parts, is as follows: “John T. Baker, plaintiff, complains of the Terre Haute & Indianapolis Railroad Company, defendant, and says that the defendant is a corporation, and is indebted to the plaintiff in the sum of fifty-six and 10-100 dollars for work done by plaintiff for defendant, as a section hand, during the months of February and March, 1887; that the agreement for work and labor as alleged in the complaint was a verbal agreement, and there was no other agreement in relation to the same; that said sum is now due and unpaid; that, on the first day of April, 1887, plaintiff demanded payment of said sum of the defendant, but the defendant refused, and still refuses, to pay the same; that the plaintiff has incurred an obligation, in the employment of attorneys to prosecute this action, in the sum of twenty-five dollars, which is a reasonable sum for attorney's fees, and said sum is also due and unpaid. Wherefore plaintiff prays judgment for said sum of fifty-six and 10-100 dollars, the sum of twenty-five dollars for attorney's fees, and a penalty of one dollar per day for every day said payment has been withheld,-in all, one hundred and fifty dollars.” To this complaint is attached a bill of partiuclars, as follows: “Terre Haute and Indianapolis Railroad Company, to John T. Baker, Dr. 1887. To 51 days' work on section 19, as section hand, at $1.10 per day, for the months of February and March, 1887, being $56.10.” The third paragraph of the answer to this complaint is as follows: “And, for further and third paragraph of answer to plaintiff's complaint, defendant says it is the owner and engaged in operating a line of rail way across the state of Illinois, and extending and running into the states of Indiana and Missouri; that it has a general office in the city of St. Louis, in the state of Missouri; that on the 15th day of March, 1887, one S. W. Smelcer instituted and began a suit against said plaintiff herein, as principal, and against this defendant as garnishee defendant, before Jeremiah Ryan, a justice of the peace in said city of St. Louis, state of Missouri; that due process and notice was had upon this plaintiff in said suit so begun, and a writ of summons duly served upon this defendant in garnishment; that it filed its answer, alleging, in substance, that, at the date of the service of process upon it, it was indebted to the plaintiff herein in the sum of $36.30; that such further proceedings were had in said suit as resulted in a judgment against this defendant in garnishment for the sum of $33.40; that the said judgment in said suit was duly given and made against this defendant as garnishee; that this defendant afterwards paid the said judgment as rendered against it, and afterwards this defendant tendered to the plaintiff herein the sum of $2.90, the balance due from the defendant to plaintiff, and for which amount it now offers to confess judgment, with costs to this date, and brings into court said sum of $2.90, and tenders the same to the defendant.” A demurrer to this answer was overruled by the court, and appellee excepted. The appellee then filed the following reply to said answer, viz.: “And, for a second and further reply to the third paragraph of said answer, he says that on the 15th day of March, 1887, and for more than one year immediately preceding that day, the S. W. Smelcer referred to in said answer and this plaintiff were citizens of Carroll county, Ind., residing in said county, where they have ever since resided and still reside; that on said 15th day of March, 1887, and for a year prior thereto, plaintiff was a resident householder of Carroll county, Ind., and had not during any of said time, nor has he yet, property of the value of six hundred dollars; that the pretended judgment set forth in said answer was upon a claim founded upon or growing out of a contract between said Smelcer and the plaintiff; that, at the time said defendant filed its answer before Jeremiah Ryan, said S. W. Smelcer was doing business as a merchant at Flora, Carroll county, Ind., and there residing, as the defendant well knew; that plaintiff never consented that said Jeremiah Ryan should have jurisdiction of his person; that said Jeremiah Ryan never did have jurisdiction to render judgment against plaintiff in the action in said answer set forth, but the same, as plaintiff is informed and believes, was procured by collusion between said Smelcer and the defendant, to prevent plaintiff from availing himself of the exemption laws of the state of Indiana, and to prevent him from securing, as against attachment proceedings, wages for one month.” The court overruled a demurrer to this reply, and the appellant excepted. A trial of the cause resulted in a finding and judgment for the appellee, in which the court allowed the appellee the sum of $38 on account of wages, $25 on account of attorney's fees in this cause, and $69 penalty on account of withholding payment of the claim in suit, making a total of $132.55.

The errors assigned by the appellant are: (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) that the court erred in overruling the appellant's demurrer to the second paragraph of the appellee's reply; (3) that the court erred in overruling the appellant's motion for a new trial.

In view of the many intricate and important questions involved in this record, we regret that the appellant has not seen fit to file a more elaborate brief. The only brief on file in behalf of the appellant is what is termed a “ supersedeas brief,” in which not a single authority is cited. In this brief the appellant reserves the right to discuss at some further time the many questions presented by the record; but, as no additional brief has been filed, we are required, under the rules of this court, to treat as waived all questions not presented by the supersedeas brief. No objection to the complaint is pointed out, and we discover none. The complaint states a cause of action against the appellant.

The argument on behalf of the appellant that the reply above set out was not sufficient is met by the appellee with the contention that the answer to which it is addressed is bad, and that a bad reply is good enough for a bad answer. It is contended by the appellee that, inasmuch as a justice of the peace has no common-law jurisdiction, and inasmuch as an attachment proceeding is a stranger to the common law, the answer, to be good, should set out some statute of the state of Missouri conferring jurisdiction on a justice of the peace in that state, and some statute authorizing a proceeding in attachment and garnishment. Whatever merit this contention might possess in the absence of any statute upon the subject, we think it is fully met by the provisions of section 369, Rev. St. 1881, which provides that, in pleading a judgment or decision of a court or officer of special jurisdiction, it shall be sufficient to allege, generally, that the judgment or decision was duly given or made. If the allegation be denied, the facts conferring jursdiction must be proved on the trial. The answer in question alleges that the judgment against the appellant therein pleaded was duly given and made. Krug v. Davis, 85 Ind. 311, cited by appellee, is not an authority here, as the question involved in that case was quite different from the one now before us. We think the third paragraph of the answer pleaded by the appellant was sufficient.

We are of the opinion, also, that the reply above set out was wholly insufficient. It does not, as erroneously contended by the appellee, contain an averment that the appellee had no notice of the pendency of the attachment proceeding instituted in St. Louis. The answer avers “that due process and notice was had upon this plaintiff in said suit so begun, and a writ of summons duly served upon this defendant in garnishment.” These averments are not denied by the reply, and must, therefore, be taken as true. When taken in connection with the averments that the judgment in said cause ...