W.H. Dreves, Inc. v. Osolo School Tp. of Elkhart County

• Decision Date: 28 June 1940
• Docket Number: 27407.
• Parties: W. H. DREVES, Inc., v. OSOLO SCHOOL TP. OF ELKHART COUNTY.
• Court: Indiana Supreme Court

28 N.E.2d 252

217 Ind. 388

W. H. DREVES, Inc., v. OSOLO SCHOOL TP. OF ELKHART COUNTY.

No. 27407.

Supreme Court of Indiana

June 28, 1940

Appeal from Superior Court, St. Joseph County; J Fred Bingham, judge.

Arnold Chipman & Degnan and Charles Dohnalek, all of South Bend for appellant.

Harman & Wider, of Elkhart, and Jones Obenchain & Butler, of South Bend, for appellee.

SWAIM Judge.

This was an action by appellant on a contract for the installation of plumbing and heating in a certain school building belonging to the appellee. The contract price for the work was $7,398, of which amount the appellant was paid the sum of $2,295 during the course of the work. After the work was completed and the architect had certified that the contractor was entitled to the payment of the balance of the contract price, an action was instituted by taxpayers of the township to enjoin the trustee from expending any further funds in respect to the contract; to have the contract declared void; and to cancel township warrants in the total face amount of $9,000, which had been issued to procure funds to pay for such work. Thereupon the said trustee refused to make any further payments on the contract and this action was filed seeking a judgment for the balance of the contract price.

To said complaint appellee filed two paragraphs of answer, the second of which alleged that said contract was illegal and void, and also filed a cross-complaint seeking to recover the amount already paid to said contractor. Appellant filed a demurrer to said second paragraph of answer and also to the cross-complaint on the theory that curative statutes enacted in 1931, 1933, 1935 and 1937 had legalized the contract and made it binding on the school township. Both of these demurrers were overruled and a trial resulted in a judgment that the appellant take nothing by its complaint and that appellee take nothing by its cross-complaint.

Appellant's motion for a new trial, alleging that the decision of the court was not sustained by sufficient evidence and was contrary to law, was overruled and this appeal followed.

The appellant assigned as error the action of the court in overruling the demurrer to the second paragraph of answer and in overruling the motion for a new trial.

The appellee had presented the contention that this court is without jurisdiction to pass upon the merits of this appeal for the reason that this is a vacation appeal; that the ninety day period for appealing has elapsed; that there has been no notice of this appeal served on the clerk below; and further that no notice of this appeal has been served upon the appellee.

The transcript was originally filed in the office of the clerk of this court on July 19, 1938, which was within thirty days of the date of the final judgment. Because of the failure of the appellant to file briefs within thirty days the appeal was dismissed on August 30, 1938. The next day the appellant petitioned for, and was granted, permission to withdraw the transcript of the record for the purpose of immediately refiling it with the clerk of this court as a new appeal. Said petition also prayed that said transcript be received and accepted as a new appeal as of the date of the refiling thereof; that the assignment of errors attached to said transcript be considered as the assignment of errors in the new appeal; and that the acceptance of service of notice of such petition be considered as notice in such new appeal with like effect as if formal notice thereof were otherwise given. Attached to said petition was a written acknowledgment by attorneys for the appellee of service thereof and consent that the prayer of said petition be granted. The transcript was thereupon refiled as a new appeal and included therein was the original assignment of error, the proof of service of notice of the original appeal, acknowledged by the attorneys for the appellee and by the clerk of the trial court. No further notice of the appeal was served.

Section 2-306, Burns' 1933, § 482, Baldwin's, 1934, provides two methods of taking a vacation appeal. The second of such methods provides 'or such appeals may be taken by procuring from the clerk of the court a transcript of the record, and proceeding in the suit, or so much thereof as is embraced in the appeal, and filing the same in the office of the clerk of the Supreme Court, who shall indorse thereon the time of filing, and issue a notice of the appeal to the appellee'. It will be noticed that this second method does not require service of notice of the appeal on the clerk of the trial court. It is only necessary to procure from such clerk a transcript of the record, file the same in the office of the clerk of the Supreme Court and serve notice of the appeal on the appellee. In such a case it is not necessary to serve notice on the clerk. In the instant case, therefore, when the transcript was withdrawn and refiled as a new appeal, the appellant was not required to serve notice on the clerk. Clark v. State ex rel. Lee, 1917, 187 Ind. 276, 281, 117 N.E. 965.

The attorneys for the appellee by their written agreement filed in this court consented to the granting of the appellant's petition, which prayed that the service and acceptance of the notice of the petition be treated as notice of the new appeal with like effect as if formal notice thereof were otherwise given. Later the appellee appeared by its attorneys and filed appellee's brief on the merits of the case. There is no contention that the attorneys who signed said acknowledgement of service of said petition and consented that the prayer thereof be granted, and who thereafter filed a brief on the merits, were not duly authorized to represent the appellee in this appeal, consequently their right to act for the appellee is presumed. Under such circumstances the appearance by the attorneys and the filing of the briefs of the appellee on the merits waives notice of the appeal. Neff v. City of Indianapolis, 1935, 209 Ind. 203, 206, 207, 198 N.E. 328. This appeal is, therefore, properly before this court for disposition on the merits.

The principal question presented under both errors assigned by the appellee is the effect, if any, of the subsequent curative legislation on the contract in question. It is contended by the appellant and admitted by the appellee, that the contract, under which the appellant did the work in question, was void at the time the work was done. The appellant contends, however, that the contract was legalized and made valid by curative statutes enacted by the Indiana General Assembly in the years 1931, 1933, 1935 and 1937. The acts on which appellant relies are the following: Ch. 60, Acts of 1931, p. 147; Ch. 75, Acts of 1933, pp. 485, 486; Ch. 143, Acts of 1935, p. 494; and Ch. 205, Acts of 1937, pp. 1016, 1017.

It is recognized that the legislature may, by a subsequent statute, correct any omission or irregularity in a proceeding which it might have dispensed with by a prior statute. Follett v. Sheldon, 1924, 195 Ind. 510, 539, 144 N.E. 867. The rule is also recognized that curative statutes are to be liberally construed in order to accomplish the remedial purpose intended. Board of Commissioners v. Millikan, 1934, 207 Ind. 142, 145, 190 N.E. 185; National Car Coupler Co. v. Sullivan, 1920, 73 Ind.App. 442, 446, 126 N.E. 494. The cases announcing this rule, however, as well as all other cases dealing with statutory construction, recognize the fundamental rule that the court, in construing a statute, must first seek to discover the legislative intent and that all other rules of construction are in aid of this fundamental rule. In determining the intention of the legislature 'the court will look to each and every part of the statute, to the circumstances under which it was enacted, to the whole law upon the subject, if any, to other statutes upon the same subject, or relative subjects, whether in force or repealed, to contemporaneous legislative history, and to the evils and mischiefs to be remedied'. Haynes Automobile Co. v. City of Kokomo, 1917, 186 Ind. 9, 13, 114 N.E. 758, 759.

In applying this recognized rule to the construction of the said 1931 Act supra we are of the opinion that the improvement contract, on which this action is founded, was not validated...