Barnes and Others v. Smith.

APPEAL from the Marion Common Pleas.

DOWNEY, J.-Suit by the appellee against the appellants on a promissory note. Judgment by default. Motion by defendants to set aside the default, and to be allowed to answer. The ground of the motion, as disclosed by the affidavit of one of the defendants and that of the attorney for the defendants, was that the atorneys of the parties had agreed that there should be a judgment for the plaintiff, by default, but that the judgment had been taken for a larger sum than had been mentioned in the agreement. The agreement was by parol and made out of court. There was a rule of the court that "admissions or agreements about the proceedings in a cause will not be enforced, or the time of the court permitted to be used in discussing them, unless in writing, or made of record, or in presence of the court."

This rule is sufficiently liberal, and perhaps goes beyond the statute, which provides that an attorney has authority, until discharged or superseded by another, to bind his client in an action or special proceeding, by his agreement, filed with the clerk, or entered upon the minutes of the court, and not otherwise. 2 G. & H. 328, sec. 772.

The common pleas could not give effect to the parol agreement made out of court without violating its own rule and at the same time disregarding the statute.

The complaint had been amended, at or after the time of the default, so as to claim five hundred dollars, instead of four hundred dollars, as the amount of the judgment. The defendants moved the court to strike out the five hundred dollars, where it had been inserted, and restore four hundred dollars. This motion was overruled. It was based on the affidavit of the counsel for the defendants stating his belief that the alteration had been made without leave of the court.

The amendment might have been made in the common. pleas, and if it had not been there made would not have been any ground for reversal in this court. Webb v. Thompson, 23 Ind. 428; Numbers v. Bowser, 29 Ind. 491.

Apple v. Atkinson.

The amount of the judgment was authorized by the terms of the promissory note on which the suit was brought. The judgment is affirmed, with costs.

R. Denny, for appellants.

R. M. Goodwin, for appellee.

APPLE V. ATKINSON.

SUPREME COURT.-Assignment of Errors.-There being no error assigned, upon an appeal to the Supreme Court, for any ruling of the court below on any pleading, or for the refusal to grant a new trial, the judgment was affirmed.

SAME.-Petition for Rehearing.-A petition for a rehearing signed by a person not a party, without any designation, prefix, or addition, to indicate that he is an attorney for a party, is not entitled to consideration by the Supreme Court.

APPEAL from the Marion Civil Circuit Court.

PETTIT, C. J.-There is no error assigned for any ruling of the court below on any pleading, nor for the refusal of the court to grant a new trial. We can, therefore, do nothing in the case but affirm the judgment, which is done at the costs of the appellant.

ON PETITION FOR A REHEARING.

PETTIT, C. J.-There is a paper filed in this case, purporting to be a petition for a rehearing, which is signed “Finch & Finch." These gentlemen are not parties to this suit, and they have not condescended, by any designation, prefix, or addition to their names, to inform us whether they are the attorneys of a party, or mere volunteers; if the latter, the petition is not entitled to consideration. But we have examined the paper as though it were properly signed, and

Smith and Others v. Hollett.

find no good reason for granting a rehearing; and the petition is overruled.

F. M. Finch and F. A. Finch, for appellant.

S. Major, for appellee.

HILBORN et al. v. DIBBLE.

SUPREME COURT.-Assignment of Errors.

APPEAL from the Laporte Circuit Court.

PETTIT, C. J.-This appeal is dismissed for a non-compliance with the 18th (now 1st) rule of this court in the assignment of errors. Brookover v. Forst, 31 Ind. 255; and the case of The State, ex rel. Childers, v. Delano, ante, p. 52, decided at this term, and the authorities there cited. F. A. Thornton, for appellants.

SMITH and Others v. HOLLETT.

CONTRACT.-Construction.—Subscription of Donation to Railroad.—Suit to recover a certain amount subscribed by the defendant as a donation to aid in the construction of a railroad, the contract of subscription on which the suit was brought, dated March 18th, 1865, providing that the subscribers thereto agreed to pay to A., or his assigns, the sums placed opposite their names, provided that A., or his assigns, should construct, or cause to be constructed, a railroad from Indianapolis to Danville, Illinois, by way of Brownsburg, Jamestown, Crawfordsville, and Covington, Indiana, to be located and established within one-fourth of a mile of Brownsburg, said sums to be paid when A., or his assigns, should have completed said railroad from Indianapolis to Crawfordsville, and should have regular trains of cars running through by way of Brownsburg. A. assigned said subscriptions to a certain railroad com

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Smith and Others v. Hollett.

pany, May 16th, 1866, by a writing wherein he stated that, having abandoned the construction of said railroad, and having the written request of a large majority of the committee with whom he had been in negotiation in relation to said road, by whom said donations were placed in his hands, to assign the same to said railroad company, he, in pursuance of said request, for value received, assigned, &c., said subscriptions to said railroad company. In May, 1869, said subscriptions were assigned in writing by said company to the plaintiffs, who in their complaint alleged the foregoing, and that they, in pursuance of said contract, located, established, and constructed said railroad from Indianapolis to Crawfordsville, by way of Brownsburg and within one-fourth of a mile thereof, and by way of Jamestown, and were rapidly completing it from Crawfordsville to Danville, Illinois, by way of Covington, and since the 9th of May, 1869, had had regular trains of cars on said road from Indianapolis to Crawfordsville, of which defendant had notice, and that they as such assigns had performed all the stipulations of said contract, &c. Held, on demurrer to said complaint, that it was not essential under said contract that said road should be constructed by A. only, but that his assignee could be substituted in the place of A. and by performance entitle himself to the sum subscribed.

Held, also, that the statement in the assignment of A., that he had abandoned the construction of the road, could not prevent a recovery by his assignee. Held, also, that if the defendant's proposition to pay said sum might have been withdrawn before formal acceptance thereof or the construction of the road, yet as it was not withdrawn, and the work was completed as alleged, it was not necessary to allege such acceptance in the complaint.

Held, also, that no time for the completion of the road being specified, a reasonable time must be allowed, and that upon demurrer to the complaint it could not be held that there had been unreasonable delay.

APPEAL from the Hendricks Circuit Court.

DOWNEY, J.-This action was brought by the appellants against the appellee on the following writing:

"BROWNSBURG, Ind. March 18th, 1865. "We, whose names are hereunto and herein subscribed, agree to pay to Henry C. Lord, or his assigns, the sums placed opposite our names, without any relief whatever from valuation or appraisement laws. Provided, that said Henry C. Lord, or assigns, shall construct, or cause to be constructed, a railroad from the city of Indianapolis, in the State of Indiana, to the town of Danville, in the State of Illinois, by the way of Brownsburg, Jamestown, Crawfordsville, and Covington, Indiana. And provided further, that the railway of said railroad shall be located and established within one

Smith and Others v. Hollett.

fourth of one mile of the town plat of the town of Brownsburg, State of Indiana; and it is expressly stipulated that said sums of money are to be paid when the said Henry C. Lord or assigns shall have completed said railroad from Indianapolis to the town of Crawfordsville, Indiana, and shall have regular trains of cars running through by the way of Brownsburg, in the State of Indiana. Witness our names. J. HOLLETT $100.00."

Which was assigned by said Lord, as follows:

"CINCINNATI, O., May 16th, 1866. "Whereas I have received from the citizens along the line of a contemplated railroad from the city of Indianapolis, Indiana, by the way of Crawfordsville and Covington, to Danville, Illinois, subscriptions of donations to aid me in the construction of a railroad between the points aforesaid, and I having abandoned the construction of said railroad, and having the written request of a large majority of the committee with whom I have been in negotiation in relation to said road, and by whom said donations were placed in my hands, to assign the said donations to the Indianapolis, Crawfordsville, and Danville Railroad Company; now, therefore, in pursuance of said request, I, for value received, do hereby assign, transfer, and set over to said Indianapolis, Crawfordsville, and Danville Railroad Company all the said subscriptions of donations, without any recourse on me.

H. C. LORD."

And it is alleged that the said railroad company afterwards, on the day of May, 1869, did assign, transfer, deliver, and pay over to the plaintiffs the said instrument in writing so executed by the said defendant, and that they are the legal and bona fide owners and holders thereof, which claim was transferred to said plaintiffs in pursuance of a contract in writing made between the said railroad company and the plaintiffs, by which the company, among other things, agreed to assign, transfer, and pay over the same to the plaintiffs.

And the plaintiffs allege that in pursuance of said contract