« ΠροηγούμενηΣυνέχεια »
lant excepted. A part of the exception was stricken out on appellee's motion, for which error the judgment was reversed by this court. Polk v. Johnson, 160 Ind. 292, 66 N. E. 752, 98 Am. St. Rep. 274. Appellee's resignation was accepted, and the Central Trust Company appointed and qualified as his successor, and upon the return of the cause to the court below appellee replied to appellant's exception by general denial and by affirmative allegations. Appellant's demurrers to the affirmative paragraphs of reply were overruled. A trial upon the issues so formed resulted in the following judgment: "And the court, having duly considered the evidence in the case, does now find that the exception filed by the said James T. Polk to the amended final report of Grafton Johnson, receiver, heretofore filed in the case, contesting an allowance for compensation in the amount of $20,000, asked for by said Johnson in said report, as to the sum of $10,500, part and parcel of said $20,000, said exception ought to be, and the same is hereby, sustained, but that as to $9,500, the remaining part and parcel of said claim, said exception is overruled; and the court doth further find that compensation to the amount of $9,500 ought to be, and the same is hereby, allowed to said Grafton Johnson for his services in said receivership, in addition to what has heretofore been allowed; and it is further ordered, adjudged, and decreed by the court, that said Grafton Johnson be, and he is hereby, allowed the sum of $9,500 as additional compensation in full for services rendered in said receivership, and the present receiver, the Central Trust Company of Indianapolis, Ind., be, and it is hereby, ordered and directed to pay said sum of $9,500 to said Grafton Johnson as such compensation, taking his receipt in full therefor. And it is further ordered that the costs of the proceedings upon the exception to said report be paid out of the funds of the trust." Appellant prosecuted an appeal from this judgment to the Appellate Court (76 N. E. 634), which court overruled appellee's motion to dismiss the appeal and affirmed the judgment. A further appeal to this court has been taken, and it is urged that the circuit court erred in overruling appellant's demurrers to the affirmative paragraphs of reply and in overruling his motion for a new trial. Appellee has properly presented his motion to dismiss the appeal, and insists that the same should be sustained, for the reasons (1) that appellant is not the real party in interest, and (2) because there is a defect of parties, in that the Central Trust Company, the receiver against whom the judgment was entered, has not been joined as a party. The motion to dismiss challenges our jurisdiction, and demands primary consideration. A term time appeal was prayed, but not perfected, and this is a vacation appeal, in which no effort has been made to join the Central
Trust Company as a party. We are of opinion that appellant is shown by the record to have such an interest in the subject-matter in litigation and in the final judgment as entitled him to prosecute a proper appeal, and that the first ground of appellee's motion cannot be sustained. Brooks v. Doxey et al., 72 Ind. 327.
The judgment from which this appeal was taken was rendered against the Central Trust Company, as receiver. The receiver represents the interests of creditors, as well as those of the embarrassed debtor, and an orderly administration of his trust requires such receiver to be a party to every proceeding affecting the estate in his custody. The right of appeal is wholly statutory, and our statutes authorizing appeals require all persons named in and affected by a judgment from which a vacation appeal is taken to be made parties. The Central Trust Company, as receiver, was a necessary party to this appeal, and failure to join it is ground of dismissal. Moore v. Ferguson, 163 Ind. 395, 72 N. E. 126; Crist v. Wayne Ass'n, 151 Ind. 245, 51 N. E. 368; Stults v. Gibler, 146 Ind. 501, 45 N. E. 340; Roach v. Baker, 145 Ind. 330, 43 N. E. 932, 44 N. E. 303; Shuman v. Collis, 144 Ind. 333, 43 N. E. 257; Lee v. Mozingo, 143 Ind. 667, 41 N. E. 454, and cases cited.
The appeal is accordingly dismissed.
(167 Ind. 569)
HAYES et al. v. SHIRK. (No. 20,802.) (Supreme Court of Indiana. Oct. 3, 1906.) 1. APPEAL-TIME OF PERFECTING-NATURE OF ACTION-STATUTES.
An action against an executor on his promise to pay assessments for a street improvement levied against the land of his testator, continued after his death, against his representative, as authorized by Burns' Ann. St. 1901, § 272, is an ordinary action at law, and an appeal from the judgment is regulated by sections 644, 645, authorizing appeals from final judgments if taken within one year, and not by sections 2609, 2610, relating to appeals from decisions growing out of any matter connected with a decedent's estate.
A præcipe directing the clerk to prepare and certify for use on appeal a transcript of the case, directed him to make a transcript of the papers and orders found in the order book at pages designated. In the transcript appeared a copy of the final judgment entitled, and in terms, in conformity to the previous rulings of the court. Held, that though the final judgment was not called for in terms, the præcipe was sufficient, under Acts 1903, p. 340, c. 193, § 7, authorizing the filing of a præcipe for a transcript, and requiring the clerk to include in the transcript every entry called for, to war rant the clerk in transcribing it, if the same was found on one of the pages designated, and, as the copy of the judgment was made a part of the transcript, the court, on appeal, will presume that it was so found. 3. SAME.
A præcipe directing the clerk to prepare and certify for use on appeal a transcript of the case directed him to make a transcript of enumerated orders, "together with the second and third paragraphs of the complaint." The 1 Rehearing denied.
clerk inserted paragraphs of the complaint which, as shown by the record, were originally filed as the second and third paragraphs, and were thereafter so designated. There were no such papers as amended second and third paragraphs of the complaint. In entering the mar ginal notes, the paragraphs were designated as the "second amended paragraph" and the "thira amended paragraph." Held that, as the mar ginal, notes were not a part of the record, the second and third paragraphs of the complaint were properly made a part of the transcript, under Acts 1903, p. 340, c. 193, § 7, authorizing the filing of a præcipe for a transcript, and requiring the clerk to include therein every entry called for.
4. SAME STATEMENT OF RECORD IN BRIEFRULES OF COURT--COMPLIANCE.
Supreme Court Rule 22, subd. 5 (55 N. E. vi), requires the appellant to give in his brief a concise statement of so much of the record as presents the errors relied on. A case came up on the sufficiency of the paragraphs of the complaint, based on an agreement to waive irregularities in an assessment for a street improvement, and pay the assessment in consideration of the right to pay the same in installments. Appellant stated in his brief that each paragraph of the complaint set up in detail the various steps which were taken in the assessment of the property, and the foreclosure and sale of the property, and the inadequacy of the proceeds to pay the assessment. The written waiver and promise to pay the assessment was made a part of each paragraph and filed therewith. Held, that appellant sufficiently complied with the rule to authorize the Appellate Court to consider the sufficiency of the complaint.
[Ed. Note.-For cases in point, see vol., Cent. Dig. Appeal and Error, § 3092.]
5. EXECUTORS-ESTOPPEL-WAIVER OF OBJECTIONS TO ASSESSMENT FOR STREET IM. PROVEMENTS-INDIVIDUAL LIABILITY.
Real estate when assessed for a street im. provement stood in the name of the executor of the deceased owner. After the confirmation of the assessment, and within the time given by the statute, an instrument, reciting a waiver or irregularities in the assessment, and containing a promise to pay the same in installments, was executed by the executor, who had no authority under the will or by the court to do so. One purchased the street improvement bonds on the faith of the executor's promise. Held, that the agreement, though void as against the estate of the deceased owner, was valid, as against the estate of the executor.
[Ed. Note. For cases in point, see vol. 22. Cent. Dig. Executors and Administrators, § 465.] Appeal from Circuit Court, Fulton County; Harry Bernetha, Judge.
Action by William J. Hayes and others against Milton Shirk, continued after his death against Ellen W. Shirk, his executrix. There was a judgment for defendant, and plaintiff appeals. Cause transferred from Appellate Court under Burns' Ann. St. 1901, $ 1337u. Reversed and remanded.
I. Conner, Kirkpatrick & Morrison, and Willits & Voorhis, for appellants. Antrim & McClintic and Holman & Stephenson, for appellee.
HADLEY, J. Appellant instituted this action against Milton Shirk to recover a personal judgment upon contract. Before answer was filed Milton Shirk died. His death being suggested, Ellen W. Shirk, his
executrix, was substituted as the sole party defendant, and filed a separate demurrer to the additional second and third paragraphs of the complaint. The demurrers were sustained, and, the plaintiffs refusing to amend, judgment was, on April 27, 1904, rendered against them for cost. On February 13, 1905, more than 100 days, but within one year, after the rendition of said judgment, the record of this appeal was filed in the Appellate Court. No appeal bond was filed within 10 days from the rendition of said judgment, and no order of the Appellate, or this court was made within one year after such decision granting the appeal. Upon the foregoing facts appellee makes the point that the appeal herein should be dismissed, because not taken in compliance with sections 2609, 2610, Burns' Ann. St. 1901. This contention calls upon us to decide whether the appeal is governed by sections 644, 645 of the Civil Code (Burns' Ann. St. 1901, pp. 304, 306), or by the special provisions of the decedents' estates act (sections 2609, 2610, supra), which require all appeals "growing out of any mat
ter connected with a decedent's estate" to a perfected within a hundred days unless otherwise ordered by the court. This action had its origin in these facts. Milton Shirk, as executor of E. H. Shirk, held the record title to certain lots abutting on Kentucky street, in the city of Kokomo. In the improvement of this street, under the Barrett law, assessments of special benefits were lodged against the lots, and Milton Shirk as executor of E. H. Shirk, executed a written. waiver of irregularities, and promised to pay the assessments, and secured thereby, for the estate of E. H. Shirk, the right to pay the assessments in 10 annual installments.
Appellants, as the owners of the defaulted bonds issued against said lots for the improvement, foreclosed, and sold the lots, and not realizing enough to pay the costs, and full amount of the assessments, instituted this action on said contract of waiver against Shirk in his individual capacity, to recover the balance. It is manifest that the decision complained of did not "grow out of any matter connected with decedent's estate" but out of an alleged breach of contract with Milton Shirk. The suit was an ordinary action at law under the Code. The circuit court had acquired jurisdiction of the person, and subject-matter, in the lifetime of Shirk, and his death did not defeat that jurisdiction. Section 272, Burns' Ann. St. 1901, provides that "no action shall abate on the death of a party," but the court shall, upon motion, allow the action to proceed by or against the representative of the deceased party. Underthis statute, it has been held, in cases where an executor or an administrator has been substituted for a deceased party, that an appeal in such case will be governed by the Civil Code, and not by the special provisions of the act relating to the settlement of de
cedent's estates. Holland v. Holland, 131 Ind. 196, 200, 30 N. E. 1075; May, Ex'x v. Hoover, 112 Ind. 455, 14 N. E. 472, and cases cited. This appeal having been perfected within one year after the rendition of the judgment, must be held timely.
Appellee further contends that there is nothing for decision, because the complaint upon which the only question arises, and also the final judgment, are not in the record. What purports to be the additional second and third paragraphs of the complaint-those to which the demurrers were sustained and a final judgment-are present in the record, and it is claimed that they are not properly there because not called for in the præcipe, nor certified by the clerk. After properly entitling the cause the præcipe directs the clerk to "prepare and properly certify for use on appeal to the Appellate Court, a transcript of the following papers, orders, and proceedings, filed and had in said cause. First, the entry of said cause upon the issue docket at page 209. Fifth, the entry at page 101 of Order Book 6, Sixth, at page 152 of same Order Book, and also at page 175 of same Order Book. Seventh, the entry at page 246 of the same Order Book. Eighth, at page 279 of the same Orber Book. Ninth, at page 285 of the same Order Book. Tenth, this præcipe, together with the second and third paragraphs of the plaintiff's complaint, the demurrers thereto, the rulings thereon, and exceptions thereto." The clerk certifies "that the above and foregoing transcript contains full, true, and complete copies of the following papers, orders, and proceedings filed, and had in said cause," and appearing on the particular pages, set forth in detail, of Order Book 6, as designated by the præcipe. In the transcript so certified, at the proper place, appears the copy of the final judgment, entitled, and in terms, in conformity to the previous rulings of the court. It is true that the final judgment is not called for, in terms, but the entries in said cause, appearing on certain pages of the Order Book, are, and the præcipe, though informal and unskillfully drawn, was sufficient, we think, to warrant the clerk in transcribing the entry of the final judgment, if the same was found on one of the pages designated, and, as the copy of the judgment is present in the record, we must presume that it was so found. It is claimed that the record discloses that amended second and third paragraphs of complaint were filed, and that the calling for the second and third paragraphs of the complaint did not authorize the clerk to insert in the transcript copies of the amended paragraphs. It is shown by the record that these pleadings were originally filed as additional, second, and third paragraphs of the complaint, and were then and thereafter, in every step of the proceedings, so denominated. There were no such papers as amended second and third paragraphs of complaint filed. In the preparation of the transcript, however, some
one, in entering the marginal notes required by the rules of this court, on appropriate pages, noted in red ink, on the left margins as follows: "2nd Par. Amended Complaint"; "3rd Par. Amended Complaint"; and these memoranda furnishes the only ground for the claim that amended second and third paragraphs of complaint were filed. It is hardly necessary to add that these marginal notes were not part of the record, and serve no other purpose than point the examiner to the particular contents of the pages. Giving to the statute concerning præcipes and transcripts in appeals (section 7, c. 193, p. 340, Acts 1903), a liberal construction, as we must, and there remains no doubt but the præcipe in question is sufficient to sustain the controverted parts of this record.
Appellee further and very earnestly contends that this appeal should not be considered, because of appellant's noncompliance with the requirements of the fifth division of rule 22 (55 N. E. vi), in the preparation of their brief, in that they failed to set forth the contents of their complaint. By the provision invoked, the appellant is required in his brief to give "a concise statement of so much of the record as, fully presents every error and exception re'ied on." The first paragraph of complaint was dismissed, and the case comes up solely upon the sufficiency of the second and third paragraphs to state a cause of action against Milton Shirk, personally, based upon his written agreement as executor of E. H. Shirk (under the Barrett law), to waive all irregularities, and pay the assessment in consideration of the right to pay the same in 10 annual installments. The paragraphs are alike, except that the second is silent as to whether Shirk was authorized by the will, or by the court, to execute said agreement, and the third expressly charges that he was not authorized either by the will, or by the court, to execute it. In ruling on the demurrers, the court held that, in executing the agreement as executor, he did not make himself personally liable. This ruling of the court is the only "error and exception relied on." So much of the record, then, as fully presents this question, is all that is required by the rule. When the question arises upon the pleading, it is seldom necessary, under the rule, to set out the particular pleading in full, though it may be done without violating the rule. ing the rule. It is however, always highly proper to omit useless matter, and it may be said that the most accurate compliance with the rule is realized when there is carried into the brief only such averments, and parts as will enable the judge, not having the record before him, to fully grasp and understand the controverted point. The two paragraphs of complaint, in this case, cover 30 printed pages of the record, the great bulk of which being of much more assistance to the court out of the brief than in it. To show that the waiver sued on related to
valid assessments, it is stated in the brief, in the proper place, though not under a separate heading, that each paragraph of the complaint sets up in detail all the various steps which were taken in the assessment of property abutting on said street, as required by the Barrett law, from the resolution declaring the necessity for the improvement to the confirmation of the assessments by the council, the amount thereof, the default in payment, the foreclosure and sale of the Shirk property, the application of the proceeds, the inadequacy of the proceeds to pay the assessments. The written waiver and promise to pay the assessments is also made a part of each paragraph and filed therewith.. It is to be conceded that there should have been more care and accuracy observed in the statement of the contents of the complaint, particularly as to the contract of waiver, but we think enough is given to effect a substantial compliance with the rule, and the sufficiency of the complaint will therefore be considered.
The suit is based upon the following instrument: "We, the undersigned, owners of property abutting upon Kentucky street, from Bernard to Morgan streets, in Kokomo, Ind., severally promise and agree, in consideration of having the right to pay in installments, our respective assessments for the improvement of said Kentucky street, as provided for in Ordinance No. 785, that we will not make any objection to any illegality, or irregularity, as to our respective assessments, and will pay the same when due, with interest thereon at such rate, not exceeding 6 per cent., as shall by ordinance or resolution of the common council of the city of Kokomo, be prescribed and required. [Signed] Milton Shirk, Ex. for E. H. Shirk. 408 ft. Lot 91, K. & S. Add. Amount $987.36." The real estate when assessed stood of record in the name of Milton Shirk, executor of E. H. Shirk. It so appeared upon the assessment roll. After the approval and confirmation of the assessments by the city council, within the time given by the statute, the above instrument was executed, not only by Mr. Shirk, but by divers other abutting lotowners. It is held by the courts of this state that an agreement like the above, entered into by a property owner pursuant to section 7, c. 118, p. 243, Acts 1889, as amended 1891 (section 4294, Burns' Ann. St. 1901), to secure the right to pay an assessment in installments, is a new and independent undertaking, upon a sufficient consideration, and imposes upon the person executing it a personal obligation to pay any part of an assessment that may remain unpaid after foreclosure and sale of assessed property. Wayne County Bank v. Gas City Land Company, 156 Ind. 662, 59 N. E. 1048: Jones Company v. Perry, 26 Ind. App. 554, 57 N. E. 583. It is a familiar doctrine that when an agent discloses his principal and acts within the scope of the agency, he does not
render himself personally liable, unless so stipulated in the agency contract. The powers, duties, and obligations of an executor or administrator with respect to the estate, like those of a trustee or public officer, are defined, and limited by will or statute. He has no general or implied powers beyond those necessary to effectuate the powers expressly conferred. In the absence of a testamentary provision to the contrary, he is entitled, by operation of law, to the possession of the personal property of the estate. It goes to him in trust for the specific purpose of adjusting and settling all contracts, claims, and obligations of the decedent that affect the assets to be administered. He has no personal interest in the assets, and no more power than a stranger to make a new and independent contract imposing a charge upon them even for the benefit of the estate. DeCoudres v. Union Trust Co., 25 Ind. App. 271, 58 N. E. 90, 81 Am. St. Rep. 95; Cornthwaite v. National Bank, 57 Ind. 268.
In other jurisdictions, independent contracts originating with, and purporting to be executed by, an executor or administrator, officially, for the sole benefit of the estate, and intended to bind only the estate, have been held void as to the estate, and personally binding on the officer, in the following cases: Upon an acceptance. Perry v. Cunningham, 40 Ark. 185; see, also, Carter v. Thomas, 3 Ind. 213. Upon covenants of title inserted by him in his conveyance of real estate. Sumner v. Williams, 8 Mass. 162, 5 Am. Dec. 83; Osborne v. McMillan, 50 N. C. 109. For the price of horses purchased for use in carrying on farming for and on intestate's estate. Rich v. Sowles, 64 Vt. 408, 23 Atl. 723, 15 L. R. A. 850. For money borrowed to pay debts. McFarlin v. Stinson, 56 Ga. 396; Lynch v. Kirby, 65 Ga. 279; Dunne v. Deery, 40 Iowa, 251; Christian v. Morris, 50 Ala. 585; White v. Thompson, 79 Me. 207, 9 Atl. 118; Winter v. Hite, 3 Iowa, 142; Bank v. Collins, 17 Mont. 433, 43 Pac. 499, 52 Am. St. Rep. 695. "This rule must be regarded as well settled," says Allen, J., in Austin v. Monroe, 47 N. Y. 360, "that the contracts of executors, although made in the interest, and for the benefit of the estate they represent, if made upon a new and independent consideration * * * are the personal contracts of the executor, and do not bind the estate." "An executor or administrator is bound individually, and not otherwise, by his promise to pay a debt of the decedent, though he promised to pay as 'executor or administrator,' because he has no power to bind the estate by contract." 11 Amer. and Eng. Enc. of Law (2d Ed.) p. 914; 18 Cyc. p. 247, 249; Moody v. Shaw, 85 Ind. 88; Holderbaugh v. Turpin, 75 Ind. 84, 39 Am. Rep. 124.
The facts alleged lead us to this feature of the case. It is alleged in the complaint that Shirk, executor, had no authority under the will, or by order of the court, to execute the
contract sued on. The demurrer admits this averment to be true. Unlike the personalty, real property goes directly to the heir, and the personal representative has nothing whatever to do with it, or control over it, except when needed to pay debts, or it is directed by the will. So, when the assessments in controversy were lodged against the lots described in the complaint, the lots belonged to the heirs, and the assessments accruing after the death of E. H. Shirk, were never a debt or obligation against the testator, nor his estate. Hence of no concern to his executor. The question, therefore, comes to this: The contract being void as to the estate of E. H. Shirk, did it operate as the personal obligation of Milton Shirk? It is not sufficient to relieve him from liability to show that no part of the consideration for the promise moved to him personally, or to his use. The law grants to the citizen the privilege of contracting for the benefit of third persons; and when such a contract is fulfilled by the promise at his cost, the promisor will not be heard to say that no consideration moved to him. What constitutes a valuable and sufficient consideration for a promise is thus stated in the text of the 6 Amer. & Eng. Enc. of Law (2d Ed.) p. 678: It may be said to consist either in some right, interest, profit, or benefit accruing to the party who makes the promise, or some forbearance, detriment, loss, responsibility, act, labor, or service given, suffered or undertaken by the other to whom it is made." See, also. a large number of cases collated in support of the text. "It is a familiar doctrine," says Woods, J., in Shaffer v. Ryan, 84 Ind. 141, "that the consideration of a promise need not be a benefit to the promisor, but may consist of a benefit to a third person, or of a detriment to the promisee." The street was improved and the appellants purchased the bonds on the faith of the promise made by Milton Shirk to pay the assessments, and, under the rule of law, as shown by the above authorities, his estate must be held liable.
Judgment reversed, and cause remanded, with instructions to overrule the demurrer to each the second and third paragraphs of complaint.
MONTGOMERY, J. (concurring). It is required by section 4294, Burns' Ann. St. 1901, as a condition precedent to the issuance of street improvement bonds and the right to pay the same in installments, that the owner of the lot or tract of ground subject to the lien, shall promise and agree in writing not to make any objection on account of any illegality or irregularity in the assessment, and to pay the same personally. The issuance of bonds without this written waiver by the owner of the real estate affected would be unauthorized; and the extension of the time of payment of the assessment lien is secured, not by a mere agreement of parties, but by
virtue of a right granted by statute. The execution of such waiver and personal obligation by any one other than the owner would not satisfy the requirements of the statute, or authorize the issuance of improvement bonds, or estop the holder of the lien from collecting the assessment at any time. If the holder of the lien cannot be bound by
waiver executed by a volunteer, then there could be no consideration for the personal agreement of such volunteer promisor. These facts take this case out of the class in which an administrator or executor may bind himself personally upon an independent contract. tract. With this explanation, and upon the understanding that the complaint proceeds upon the theory that Milton Shirk was the owner, or one of the owners of the real estate assessed for the improvement, at the time he executed the instrument sued on, I concur in the result reached in the opinion of my Brother HADLEY.
(167 Ind. 139)
AIKEN v. CITY OF COLUMBUS. (No. 20,664.)
(Supreme Court of Indiana. Oct. 2, 1906.) 1. MUNICIPAL CORPORATIONS-TORTS-UNDERTAKINGS FOR PECUNIARY PROFIT.
A municipality voluntarily exercising for its own benefit the power of lighting its streets by maintaining an electric light system, as authorized by Burns' Ann. St. 1901, § 4301, empowering cities to light their streets with electricity, is liable for injuries sustained in consequence of its negligence in operating the system.
[Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 1547, 1548.]
2. ELECTRICITY-INJURIES INCIDENT TO USE
A complaint for the death of one coming in contact with a live electric light wire showed that the fall of the wire was the proximate cause of the death and that the wire had become weak and rotten, in which respect defendant was charged with negligence, but it was not alleged that the wire fell by reason of such defective condition. Held. that, though it was clear from a reading of the complaint that that was an assumed fact, the omission to so allege rendered the complaint insufficient on demurrer.
Appeal from Circuit Court, Bartholomew County; Marshall Hocker, Judge.
Action by Lewis Aiken, administrator, against the city of Columbus. From a judg ment for defendant, after sustaining a demurrer to the complaint, plaintiff appeals. Transferred from the appellate court under Burns' Ann. St. 1901, § 1337u. Affirmed.
Jno. W. Morgan and W. W. Lambert, for appellant. Francis T. Hood, Jas. F. Cox, Chas. S. Baker, W. H. Everroad, C. B. Cooper, and C. J. Kollmeyer, for appellee.
GILLETT, J. By appellant's complaint in this action appellee was sought to be charged with negligence in the management of its public lighting system, whereby appellart's intestate was killed, on his own premises,