Lengelsen v. McGregor et al., 162 Ind. 258

Hadley, J. Suit by appellees .to foreclose mechanic’s lien.

It is averred in the complaint that the defendants are indebted to the plaintiffs in the sum of $478 for building material sold and delivered to the defendants by the plaintiffs, and work and labor performed at the defendants’ special instance and request, which is specifically set forth in a bill of particulars filed with the complaint; that the last of such materials was furnished and said work and labor performed on June 25, 1900; that said material and work and labor were furnished by plaintiffs to defendants and were used by them to erect a brick building on certain described real estate in Posey county; that plaintiffs caused notice of lien to be recorded, etc.

Louis Lengelsen made default, and appellant Edward Lengelsen answered by general denial. Trial by court, finding, and personal judgment against Louis, and foreclosure of lien against both on the real estate described in the complaint. Edward Lengelsen alone prosecutes this appeal. Pie assigns for error:

(1) The insufficiency of the complaint to constitute a cause of action; (2) the overruling of specification three of his motion to modify the judgment; and (3) the overruling of his motion for a new trial. The first assault upon the complaint is made in this court. At this late date it is incumbent upon the appellant to point out some infirmity in the complaint that is incurable by the presumptions that arise from the court’s finding against him, from the overruling of his motion to modify the judgment, and the overruling of his motion for a new trial.

Uncertainty and inadequacy of averment that might have been cured by motion timely made will now be deemed as waived, and nothing short of a showing that the complaint is fatally defective from the total absence of averment of some fact essential to the existence of the cause of action will now authorize the reversal of the judgment founded thereon. City of South Bend v. Turner, 156 Ind. 418, 54 L. R. A. 396, 83 Am. St. 200; Shoemaker v. Williamson, 156 Ind. 384; Smith v. Smith, 106 Ind. 43, 45.

Appellant admits that the complaint is good so far as to support a personal judgment, but argues that the court’s finding that he was not liable to a personal judgment is equivalent to a finding that he made no contract for the materials and work and labor sued for, and without a contract and personal liability there can be no lien, except Avhen the plaintiff sues as a subcontractor, in which event his complaint must show that fact, and that there was a contract between the principal contractor and the defendant, and that something is due the plaintiff from his employer.

By this argument appellant seeks to place himself in a better situation than he confessedly would have been in if he had demurred to the complaint in the court beloAV. The complaint charges against appellant and his brother Louis a joint liability both to a personal judgment and lien on the property described, and, because appellant succeeded in his defense as to a personal liability, it by no means follows that his property was not justly chargeable by some agreement or principle of equitable estoppel. The character of the proof has nothing to do with the sufficiency of the complaint.

So far as the foundation of the action is concerned, it must stand or fall upon its own merits. The complaint- is sufficient to support the proceedings and judgment constructed upon it. It is insisted by appellees that there is no further question presented, because the evidence upon which all the remaining ones depend is not in the record. The transcript discloses that appellant’s motion for a new trial was overruled on March 15, 1901, and sixty days given him in which to file bills of exception.

On May 13, 1901, appellant, having prepared his bills of exception number one and number two — the latter containing the evidence— went to the residence and chambers of the trial judge for the purpose of presenting said bills for approval, and, finding' that the judge was absent from the State, he caused each of said bills to be filed in the clerk’s office and indorsed by the clerk as follows: “Row, here comes Edward Lengelsen, by Louis J. Ahlering, his attorney, and presents and files this bill of exceptions Ro. 2 for filing this 13th day of May, 1901.

On account of the absence of Judge William Louden from the State, his signature to this bill of exceptions can not be obtained. Paul Maier, clerk.” And immediately following is the further entry: “And now here the defendant Edward Lengelsen tenders this, his bill of exceptions Ro. 2, on the 4th day of June, 1901, and prays that the same may be signed, sealed, and made a part of the record, which is accordingly done on the 4th day of June, 1901. And I, William Louden, do hereby certify that I was absent from the State of Indiana continuously from the 20th day of April, 1901, until the 2d day of June, 1901.

William Louden, judge pro tempore Posey Circuit Court.” A further entry shows a filing of the bills in the office of the. clerk on June 4, 1901. ■ There is no pretense that the bills were actually presented to the judge within the time allowed, but appellant insists that, having been granted a specified time in which to prepare and present them, and having' prepared them and done all in his power to present them within the limit, he should not be deprived of their benefit by the judge so absenting himself from the State that his signature could not be obtained.

The argument is not without force if addressed to the lawmaking body, but we have no power to change a law, or condemn it, because its provisions seem to us harsh and inequitable. The right of appeal is not an absolute right. It is granted or withheld at the pleasure of the legislature; hence that body, in conferring the right of appeal, has the undoubted power to fix the terms upon which the right may be enjoyed.

One of the terms fixed is that “the party objecting must, within such time as may be allowed, present to the judge a proper bill of exceptions. * * * The date of the presentation shall be stated in the bill of exceptions, and the entry shall show the time granted, if beyond the term, for .presenting the same.” §641 Burns 1901. “Our statute,” says Mitchell, J., in Rigler v. Rigler, 120 Ind. 431, “is imperative upon two points:

(1) The party ‘must, within such time as may be allowed, present to the judge a proper bill of exceptions.

(2) The date of the presentation shall be stated in the bill of exceptions.’ ” The statutes are equally as mandatory that to bring exceptions into the record after the term special leave to do so must be granted by the court at the time of the ruling, or at the time of the ruling upon a motion for a new trial which has carried such exception forward. §638 Burns 1901. Under the common law the court had no power to allow a bill of exceptions after the term, and the power being conferred by statute must be exercised as the statute directs, or it amounts to nothing.

The limits for the completion of the record in every case must be determined not later than the term at which final judgment is entered, or the time of ruling upon the motion for a new trial. After that time the court is destitute of authority to act, and has then no more power to extend the time for presenting and filing a bill of exceptions previously fixed than he has for granting it then originally. So the question before us is one of power, rather than one of sufficiency of reason or excuse for not presenting the bill in time.

It has long been held that the absence of the judge from the State during the time allowed for presenting and filing a bill of exception furnished no ground or authority for presenting, approving, and incorporating exceptions in the record at a date subsequent to the time fixed. Kirby v. Bowland, 69 Ind. 290; Rigler v. Rigler, supra; Wood v. Ohio Falls Car Co., 136 Ind. 598; Cornell v. Hallett, 140 Ind. 634; Goldthait v. Cincinnati, etc., R. Co., 143 Ind. 356.

At the next following term appellant, by motion reciting the facts concerning the preparation of the bills within the time allowed, -and the impossibility of presenting to and procuring the signature of the judge on account of his-absence from the State, moved the court to enter then over his signature the presentation of the bills under date of May 13, 1901, which motion was overruled by the court. This proceeding is brought into the record by a supplemental transcript, and error is assigned upon the overruling of said motion. The ruling of the court was correct. See Kirby v. Bowland, supra; Driver v.

Driver, 153 Ind. 88. It must, therefore, be held that the bills of exceptions are not in the record. Though the evidence is not properly before us, we have nevertheless examined it, and find that the judgment would have to be affirmed if the evidence were properly in the record.

It appears therefrom that at the time the land was purchased it was perfectly understood by both that the sole purpose of the purchase by appellant was to assist his brother in establishing himself in the saloon business; also that his brother had recently failed in business in the commitnity, and was financially unable to start anew without help.

Both believing that this particular tract, being at the intersection of three roads, would be an advantageous place for a saloon, it was mutually, but verbally, agreed, that appellant should buy the land and turn it over to his brother, who was to construct thereon a '¡suitable building, and pay appellant a ground rent equal to eight per cent, per annum of the purchase price, and if within two years the brother should become able to buy it, he should have it at cost and eight per cent." interest from date of purchase. Under this agreement Louis took the most active

part in negotiating the purchase of the land, represented appellant at its survey, and when the purchase was accomplished he went immediately into possession and contracted with appellees for the erection thereon of a brick building. Appellant knew when his. brother took possession that his intention was to proceed forthwith to build a house upon it, and that he was not. able to pay for it himself and start in business; and after the building was begun appellant was informed of it, but made no objection thereto, and furnished his brother $100' knowing that it was to 'be used in part payment for the building.

It is an ancient principle of equity that, where one of two persons must suffer from the act of a third, he must be the sufferer who puts it in the power of the third to inflict the injury. Erom this principle has sprung the well-established rule that one may not stand by without objection and see another in good faith improve and enhance the value of his property, and then hold onto such benefits without paying for them. Powers v. Town New Haven, 120 Ind. 185, 191; DePauw Plate Glass Co. v. City Alexandria, 152 Ind. 443; Ross v. Stackhouse, 114 Ind. 200, 205; Thompsons. Shepard, 85 Ind. 352; Greene v.

Smith, 57 Vt. 268. Llere appellant did more than stand by. He purchased the land and purposely placed it in the possession of his brother for the erection of a business house thereon, well knowing that his brother had but recently failed, and was unable to reestablish himself in business without financial assistance. Furthermore, appellant had knowledge of the character of the building under construction, furnished his brother $100 to make a payment thereon, and thus with full knowledge and active cooperation, and without any objection or notice to the builder (appellee), he actively helped the enterprise along.

To permit him now to keep the house without paying for it would be unconscionable, and the maxim applies, “One who remains silent when conscience requires him to speak, will not be permitted to speak when conscience requires him to be silent.” Judgment affirmed.