Wright v. Manns

• Decision Date: 24 May 1887
• Docket Number: 13,254
• Citation: 12 N.E. 160,111 Ind. 422
• Parties: Wright, Executrix, et al. v. Manns et al
• Court: Indiana Supreme Court

12 N.E. 160

111 Ind. 422

Wright, Executrix, et al. v. Manns et al

No. 13,254

Supreme Court of Indiana

May 24, 1887

Petition for a Rehearing Overruled Sept. 27, 1887.

From the Harrison Circuit Court.

The judgment is reversed, with costs, and the cause is remanded with instructions to overrule the demurrer to the second paragraph of answer, and to sustain the demurrer to the second paragraph of complaint, and for further proceedings not inconsistent with this opinion.

B. P Douglass, S. M. Stockslager, N. R. Peckinpaugh and H. C Hays, for appellants.

W. N. Tracewell and R. J. Tracewell, for appellees.

OPINION

Howk, J.

This suit was commenced by appellees on the 28th day of August, 1883, against Samuel J. Wright, then in full life but since deceased, and Lewis W. Bowling, as defendants, in a complaint of two paragraphs. The cause was thereafter continued from term to term until the February term, 1885, of the court below. On the 26th day of February, 1885, the death of defendant Samuel J. Wright, testate, having been suggested to the court, it was ordered that his executrix, Mary E. Wright, be substituted as defendant herein, in his stead. Afterwards, on July 23d, 1885, the issues in the cause were tried by the court, Hon. David W. LaFollette presiding as special judge, and a finding was made for the appellees, on the second paragraph of their complaint, in the sum of $ 425.61; and over appellants' motion for a new trial, the court rendered judgment against them, on the day and year last named, upon such finding. On the same day the court made and rendered its finding and judgment, in favor of appellants and against appellees herein, upon the issues joined on the first paragraph of appellees' complaint herein.

Errors are assigned here by appellants, the defendants below, which call in question (1) the overruling of their demurrer to the second paragraph of appellees' complaint, and (2) the sustaining of appellees' demurrer to the second paragraph of appellants' answer herein.

On the 8th day of April, 1887, the appellees moved this court in writing to dismiss the appeal herein upon two grounds, namely: 1. Because the appeal was not perfected by the filing of the transcript of the record in the office of the clerk of this court within one year from the rendition of the judgment below; and 2. Because such appeal was not taken within the time limited by section 2455, R. S. 1881, the judgment below herein being connected with a decedent's estate. This motion to dismiss must first be considered and decided, because, if well taken, it will dispose of this appeal.

1. The judgment below herein, as will appear from our statement of this case, was rendered on the 23d day of July, 1885. On the 23d day of July, 1886, appellants filed in the clerk's office of this court a transcript of the record of this cause, with their assignment of errors thereon, as and for their appeal from the judgment below to this court, under the provisions of section 640, R. S. 1881. No time is specified in section 640, supra, within which an appeal to this court, in a civil action, must be taken in the manner prescribed therein. But in the recent case of Johnson v. Stephenson, 104 Ind. 368, 4 N.E. 46, it was held upon full consideration that such section 640 must be considered and construed in connection with section 633, R. S. 1881; that appeals to this court, in all civil actions, must be perfected by filing a transcript of the record in "the office of the clerk of the Supreme Court" within one year from the time of the rendition of the judgment appealed from; and that if the transcript be not so filed within the year, the appeal must be dismissed. Harshman v. Armstrong, 43 Ind. 126; Jenkins v. Corwin, 55 Ind. 21; Anderson v. Mitchell, 58 Ind. 592.

From what we have said it is manifest, we think, that the question we are now considering, whether or not the appeal in this action was perfected within one year from the rendition of the judgment appealed from herein, depends for its proper decision upon the rule in this State for the computation of time. If the day on which the judgment was rendered is to be included in the year within which an appeal to this court in a civil action must be perfected, it is clear that the appeal herein was not perfected within one year; but if that day is to be excluded in computing such year, it is equally clear that the appeal in this case was perfected within one year from the rendition of the judgment herein, and the motion of appellees to dismiss this appeal, for the first cause assigned therein, is not well taken. Our civil code prescribes the rule in this State for the computation of time, in all civil actions, as follows: "The time within which an act is to be done, as herein provided, shall be computed by excluding the first day and including the last. If the last day be Sunday, it shall be excluded." Section 1280, R. S. 1881. The section quoted and cited is a literal re-enactment of section 787, of the civil code of 1852, which took effect May 6th, 1853; and, therefore, the rule declared therein for the computation of time, in all civil actions, has been in force continuously for more than thirty-four years. This statutory rule for the computation of time, in civil actions, since its first enactment, has been recognized and acted upon repeatedly in our decisions. Noble v. Murphy, 27 Ind. 502; State, ex rel., v. Thorn, 28 Ind. 306; Byers v. Hickman, 36 Ind. 359.

2. As to the second ground stated in appellees' motion for the dismissal of this appeal, it will suffice to say that the precise question thereby presented was fully considered and decided by this court adversely to the motion of appellees herein in Heller v. Clark, 103 Ind. 591, 3 N.E. 844. See, also, the cases there cited.

Our conclusion is that appellees' motion to dismiss the appeal herein is not well taken on either ground stated therein, and must be overruled.

We come now to the consideration of the errors of which complaint is made here by appellants' counsel. It is first insisted on appellants' behalf that the trial court erred in overruling their demurrer to the second paragraph of appellees' complaint. In this paragraph appellees declared upon a written undertaking, taken and approved by the sheriff of Harrison county on the 14th day of August, 1879, of which the following, omitting the obligors' signatures, is a copy:

"We, Isaac Urbanski, Samuel J. Wright and Lewis W. Bowling, are held and firmly bound unto Louis Manns and John Manns, partners, under the firm name of Manns, Bro. & Co., to the effect following: That whereas, at the suit of said Manns, Bro. & Co., the sheriff of Harrison county, Indiana, did, on the 12th day of August, 1879, attach and take into possession certain of the personal property of said Isaac Urbanski, which is correctly enumerated and described in the schedule of said sheriff attached to the writ of attachment in said case issued; and whereas, the said sheriff has redelivered said personal property to said Isaac Urbanski; now, the above bound Isaac Urbanski, Samuel J. Wright and Lewis W. Bowling undertake that the said Isaac Urbanski shall properly keep and take care of said property, and shall, on demand, deliver to said sheriff of Harrison county the personal property so attached by him and described in said schedule above referred to, or that failing so to do they will pay the full appraised value of said property, to the extent of any judgment which may be recovered against said Isaac Urbanski by said Manns, Bro. & Co., and any costs which may be taxed against him in said proceeding. Witness our hands and seals this 14th day of August, 1879."

In the second paragraph of their complaint appellees alleged breaches of the foregoing undertaking, as follows:

1st. That neither of the defendants therein had caused to be delivered to the sheriff of Harrison county any part of said attached property, but, on the contrary, had failed, refused and neglected so to do, and appellees averred that such property was of the value of $ 550.

2d. That neither of such defendants, nor any other person, had paid, or caused to be paid, any part of appellees' judgment against Isaac Urbanski, but the same remained due and wholly unpaid.

3d. That said Isaac Urbanski did not properly keep and take care of said attached property in such undertaking mentioned, but, on the contrary, immediately after the execution of such undertaking he removed such property without the jurisdiction of the court below, and without the boundaries of the State of Indiana, and that neither he nor any part of said property had been within the limits of Harrison county since March 1st, 1880. Wherefore, etc.

It is claimed on behalf of appellants that this paragraph of complaint was clearly bad on their demurrer thereto, for the want of averments therein that after appellees had procured the correction of their personal judgment against the defendant Urbanski by the entry of a nunc pro tunc order for the sale of the attached property, they had caused a special execution to be issued thereon to the sheriff of Harrison county, commanding him to sell such attached property, or so much thereof as might be necessary, to pay their said judgment; and that the sheriff of such county, by virtue of such special execution or otherwise, had demanded of Urbanski or his sureties in such undertaking, before the commencement of this suit, either that they deliver to such sheriff said attached property or that, failing so to do, they pay to such sheriff the full appraised value of such attached property to the extent of appellees' aforesaid...