Wayne Sewer and Drain Company v. Ward Cowen Construction Company
| Decision Date | 20 November 1919 |
| Docket Number | 10,602 |
| Citation | 125 N.E. 64,72 Ind.App. 437 |
| Parties | WAYNE SEWER AND DRAIN COMPANY ET AL. v. WARD COWEN CONSTRUCTION COMPANY ET AL |
| Court | Indiana Appellate Court |
Rehearing denied December 12, 1919.
Transfer denied February 3, 1920.
From Morgan Circuit Court; Linn D. Hay, Special Judge.
Action by the Ward Cowen Construction Company and others against the Wayne Sewer and Drain Company and others. From the judgment rendered, the defendants appeal.
Appeal dismissed.
Meyers Gates & Ralston, for appellants.
J. W Fesler, Harvey J. Elam and Howard S. Young, for appellees.
Appellee has moved to dismiss this appeal upon the ground that no final judgment was rendered by the lower court from which an appeal will lie to this court.
The facts in this case, so far as they are pertinent to the consideration of the question presented in the motion to dismiss, are as follows: Appellee instituted an action for damages for the breach of a certain written contract, in which action appellant was the principal defendant. Appellant filed answers, and also a counterclaim for damages for breach of the same contract that is sued on by appellee in its complaint. In addition to the damages sought by appellant in its counterclaim, and in the same paragraph in which it asks for such damages, appellant sought the reformation of the contract to express the intent of the parties by inserting certain omitted parts of the agreement sued on. The question of reformation was submitted to the court, without a jury, and, after hearing evidence, the court adjudged that the contract be reformed in part and denied the reformation in part. The cause was then submitted to a jury for trial on the issues presented by the complaint, and also the issues presented by the counterclaim based on the contract as reformed. The jury returned a verdict for appellee. Appellant with its codefendants filed a motion for a new trial, which was granted as to the issues tried before the jury, but refused as to the issues on the reformation of the contract. With this state of the record, appellant now seeks to prosecute an appeal from the judgment and ruling of the court as to the reformation of the contract.
The question presented for our consideration is whether the judgment reforming the contract, which was the basis both of the complaint and of the counterclaim, was such a final judgment as will sustain this appeal. We think not. A final judgment is one...
To continue reading
Request your trial
-
Wayne Sewer & Drain Co. v. Ward Cowen Const. Co.
... ... Hay, Judge.Action by the Ward Cowen Construction Company against the Wayne Sewer & Drain Company and others. Judgment for plaintiffs, and defendants ... ...