Slike stranica
PDF
ePub

(125 N.E.)

[4] The bond was filed in perfecting a term time appeal, and it had the effect to stay all proceedings for the enforcement of the judgment during the pendency of the appeal. It is asserted that this proceeding is one brought for the purpose of enforcing the judgment, by means of a receivership, as a claim against the assets in its hands as such receiver. It does not appear from the record that any motion was made in the trial court for an order staying the proceedings during the pendency of the appeal, or that this question was in any other way presented to the trial court and decided. The trial court proceeded no further than to nake an order, declaring that appellant held the property purchased as receiver, and directing it to give bond. By this appeal the authority of the receiver to act further was suspended before the claim of appellee was allowed or any other steps taken to subject the property in the hands of the receiver to the payment of appellee's claim. The appeal bond filed operated to stay all proceedings to enforce the judgment, and there can be no doubt that any attempt, while the appeal was pending, to enforce it against the property in the hands of the receiver, would be stayed on proper motion.

appellant had complied strictly with the re- | of the judgment, if affirmed, was secured by quirement of the statute as to the giving an appeal bond. of notice; but it does not necessarily follow that appellee would not have learned of the proposed sale had the required notice been given to the other creditors of the seller. Stuart v. Elk Horn Bank & Trust Co. (1916) 123 Ark. 285, 291, 185 S. W. 263, Ann. Cas. 1918A, 268. However that may be, the reasons advanced by appellant on this point are sufficiently answered by reference to the statute. The Legislature has prescribed such notice as it deemed to be sufficient, and has required that it be given. The statute provides what consequences shall ensue to the purchaser in case the statute is not followed, and by force of the statute the consequences so prescribed will follow a failure to comply with its terms, even though it is made to appear that a compliance with the provisions of the act would have been of no benefit to the complaining creditor, or that the failure to so comply did not operate to his prejudice. Appellant's affidavits show that after the list of creditors had been furnished it caused all of the accounts payable, owing by the seller, to be paid out of the purchase money before taking possession, and that arrangements were made for the payment of the outstanding notes of the seller which were satisfactory to the holders of such notes. The statute does not provide that the purchaser shall have the option of giving the notice prescribed or of paying out of the purchase money the claims of the seller's creditors appearing on the list and all others of which he has knowledge. When he takes the latter course, he does not comply with the statute, and he acts at his peril as to any creditors of the seller whose claims may not be included.

Finding no reversible error in the record, the judgment is affirmed.

JAMES v. STATE.
(Supreme Court of Indiana.

1. INTOXICATING LIQUORS

(No.

(188 Ind. 579) 23543.)

Nov. 25, 1919.) 222-CHARGE OF

VIOLATION OF PROHIBITION ACT NOT STATING
EXCEPTION OF PROVISO.

The charge that defendant unlawfully kept intoxicating liquor, to wit, whisky, gin, wine, and beer with intent to sell, barter, exchange, or otherwise dispose of it to persons to affiant unknown sufficiently charged a violation of Acts 1917, c. 4, § 4, though not stating the exception contained in the proviso.

2. INTOXICATING LIQUORS

222-AFFIDAVIT

CHARGING LIQUOR NUISANCE WITHOUT EX-
CLUSION OF HOME.

[3] The judgment on which this proceeding rests is shown to be based on a disputed claim which is still in litigation. Before the hearing and order in the trial court, a bond had been filed and an appeal had been taken to this court, where the appeal is still pending. It is claimed that the statute under consideration does not apply to a judgment creditor under the circumstances stated. The statute refers in general terms to the creditors of the seller without any exceptions or reservations. The statute does not except from its operation claims which are secured, nor does it except disputed claims which are in litigation. The language being clear, the court has no power to ingraft on the statute exceptions which the Legislature did not see fit to make. If the statute in its application and operation proves to be harsh or oppressive, relief can be sought only at the hands of the Legislature. The courts 3. STATUTES 114(6)-TITLE OF LIQUOR LAW. are powerless in the matter. Appellee was Acts 1917, c. 4, relative to intoxicating liqnot precluded from resorting to the remedy uors, their keeping, sale, or other disposal, held provided by the statute because the payment not violative of Const. art. 4, § 19, as not em

Charge that defendant unlawfully maintained a common nuisance, a room and place where intoxicating liquors were kept for sale in violation of law, etc., sufficiently charged a violation of Acts 1917, c. 4, § 20, though not excluding the home, where defendant had a right to have liquor and dispense it to his guests; the law not authorizing him to keep liquor in his home for sale.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

bracing a single subject and connected matters, | in the proviso. State v. Sarlin, 123 N. E. expressed in the title. 800.

[blocks in formation]

[2] The third count of the affidavit is based on section 20 of chapter 4, Acts 1917, which provides that

"Any room, house, building, boat, structure or place of any kind where intoxicating liquor is sold, manufactured, bartered or given away in

Appeal from Criminal Court, Marion Coun- violation of law, or where persons are permitted ty; James A. Collins, Judge.

Louis James was convicted of unlawfully keeping intoxicating liquor to sell or otherwise dispose of it, and he appeals. Affirmed. Holmes & McCallister, of Indianapolis, for appellant.

Ele Stansbury, of Indianapolis, and Dale F. Stansbury, of Covington, for appellee.

WILLOUGHBY, J. The appellant appeals from a conviction in the criminal court of Marion county. The case was first tried in the city court of the city of Indianapolis, and from a conviction in that court appellant appealed to the Marion criminal court, where a jury trial was had, and the defendant found guilty on the second and third counts of the affidavit, and his punishment fixed at imprisonment in the Marion county jail for a period of 60 days and a fine of $200. A separate verdict was returned on each count and the same punishment fixed. Judgment was rendered on both verdicts. No evidence is set out in the record and the appellant, in his brief, says that he raises no question on the instructions or evidence in the case.

[1] The defendant moved to quash each count of the affidavit for the reason that neither of said counts state facts sufficient to constitute a public offense. No other reason is assigned. The second count is based The second count is based on section 4 of chapter 4, Acts 1917, which provides that

"After the 2d day of April, 1918, it shall be unlawful for any person to manufacture, sell, barter, exchange, give away, furnish, or otherwise dispose of any intoxicating liquor or to keep any intoxicating liquor, with intent to sell, barter, exchange, give away, furnish, or otherwise dispose of the same, except as in this act provided."

This second count of the affidavit charges that

Louis James, "on the 25th day of November, 1918, at the city of Indianapolis, in Marion county, in the state of Indiana, did then and there unlawfully keep intoxicating liquor, to wit, whisky, gin, wine, and beer, with intent then and there to sell, barter, exchange, give away, furnish and otherwise dispose of the same to persons to the affiant unknown within

the state."

to resort for the purpose of drinking intoxicator club where such liquor is kept to be drunk ing liquor as a beverage, or any place, building as a beverage by the members thereof or any other persons, or any place where such liquor is kept for sale, barter, or delivery in violation of the laws of this state, and all intoxicating maintaining such a place, are hereby declared liquor and all property kept in and used in to be a common nuisance; and any person who maintains or assists in maintaining such common nuisance, shall be guilty of a misdemeanor," etc.

The third count, after stating the venue, charges that

The defendant "did then and there unlawfully maintain and assist in maintaining a common cating liquors were then and there kept for sale, nuisance, to wit, a room and place where intoxibarter, and delivery in violation of the laws of this state, and where persons were then and there permitted to resort for the purpose of drinking said intoxicating liquors as a beverage and said intoxicating liquor, to wit, whisky, gin, wine, and beer kept in and used in maintaining said place."

Appellant claims that neither of the counts contain an allegation excluding the and had a right to dispense it to his guests. home, where he had a right to have liquor Appellant seems to overlook the fact that the law does not authorize him to keep liquor in his home for sale, barter, or exchange, or keep it in his home with intent to sell, barter, or otherwise dispose of the same con

trary to law.

[3] Appellant also claims that chapter 4 of the Acts of 1917 is unconstitutional, in that it violates section 19, art. 4, of the Constitution of Indiana, which provides that

"Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as

shall not be expressed in the title."

This court has decided that question adversely to appellant's contention. Schmitt v. Cook Brewing Co., 120 N. E. 19.

[4] The affidavit is not defective on account of its failure to show the official character of the officer who administered the oath. State v. Osborn, 155 Ind. 385, 391, 58 This is a sufficient charge. It was not N. E. 491; Brooster v. State, 15 Ind. 190. necessary to state the exception contained The court did not err in overruling appel

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(125 N.E.)

lant's motion to quash each count of the affi- quent consideration and investigation, the davit.

Appellant asserts that the court erred in overruling his objection to the rendition of judgment against him. The appellant's brief discloses that the objections of appellant to the rendition of the judgments were set forth in two motions filed in the trial court, in which the reason is stated that the jury signed two separate verdicts finding the defendant guilty of two separate and distinct charges in the affidavit, and that one of said verdicts was not properly returned into court, and that the verdict on the second count of the affidavit was not returned and read in open court, and that the verdict on the second count of the affidavit was discovered after the jury had been discharged. The record shows this statement to be incorrect, and affirmatively shows that each of said verdicts was duly returned in open court. The statement on that subject in the record is as follows:

"The jury retire to deliberate on their verdict, being in charge of Clarence W. Clegg, a duly sworn bailiff of this court, and, after a time passed in deliberation, the jury, accompanied by the bailiff, returned into open court the following verdicts"

-and then following this each verdict is set

out in full in the record.

doubt has ripened into a conviction that the rule thus announced is erroneous.

The opinion holds that appellant's rights under the equitable assignment of the prospective assessments were such only as could have been asserted by his assignor in case no assignment had been made. In order to entitle the contractor to a final estimate, it was necessary that the work should be completed and accepted by the city. If he failed to complete the contract, he would be entitled, in equity, to receive only the balance of the proceeds of the assessments after deducting the amount of all costs and expenses incident to the completion of the work to be done under the contract and the amount of all unpaid claims for labor and material which entered into its construction. Appellant took the assignment of the proceeds of the contract subject to all equitable defenses. Rosenthal v. Rambo (1905) 165 Ind. 584, 76 N. E. 404, 3 L. R. A. (N. S.) 678; Copeland v. Manton (1872) 22 Ohio St. 398; Hardaway v. National Surety Co. (1908) 211 U. S. 552, 29 Sup. Ct. 202, 53 L. Ed. 321.

By the appointment of a receiver the whole controversy was drawn within the jurisdiction of a court of equity. In a court of equity having jurisdiction to declare priorities and to order a distribution of the pro

No other question is presented in this ap-ceeds of the contract, the rights of the aspeal. No error being shown, the judgment

is affirmed.

(188 Ind. 621)

ÆTNA TRUST & SAVINGS CO. v. NACK

ENHORST et al. (No. 23083.)

(Supreme Court of Indiana. Dec. 12, 1919.) Appeal from Superior Court, Marion County; W. W. Thorton, Judge.

On rehearing. Former opinion adhered to. See 122 N. E. 421. See, also, 123 N. E. 353. Walker & Hollett, of Indianapolis, for appellees.

LAIRY, J. The original opinion holds that unpaid claims for material furnished to the contractor before it abandoned the work had no priority over the claim of appellant under its equitable assignment of the proceeds of the contract. The writer of the opinion entertained some doubt as to the correctness of this statement at the time of the adoption of the opinion by the court, and, from subse

signee of such proceeds were the same that those of the assignor would have been in case no assignment had been made. If the contractor had been in court, and had been insisting on an order directing the proceeds to be turned over to him in preference to the unpaid claims allowed by the court for labor and material which entered into the construction of the work, I think there can be little doubt that the claims for such materials would be entitled to priority of payment.

For the reasons stated, I am of the opinion

that the unpaid claims for materials furnished to the contractor prior to the time he abandoned the contract are entitled to preference over the claims of appellant under the equitable assignment of the proceeds of the contract.

While I vote to deny the petition for rehearing in preference to adopting the views expressed in the dissenting opinion, I do so with the mental reservation herein expressed. I have an abiding conviction that the original opinion should be modified in the manner indicated. None of the other members of the court agree that it should be so modified.

(71 Ind. App. 548)

WINONA ELECTRIC LIGHT & WATER
CO. v. GOSHERT. (No. 10577.)

(Appellate Court of Indiana. Dec. 11, 1919.)
APPEAL AND ERROR 771-FAILURE TO FILE
BRIEFS NOT EXCUSED BY LACK OF NOTICE OF

SUBMISSION.

Where the cause was submitted June 20th, and between that date and August 20th, the time allowed for filing of briefs, no briefs were filed on behalf of appellant, the appeal will be dismissed on appellee's motion, despite appellant's petition that the submission of the case be set aside and vacated and permission be granted to file appellant's brief on the ground that by reason of failure to receive notice of the submission it was misled as to the time within which briefs should be filed, there being no contention that the clerk failed to discharge his

duty under rule 18 of the Supreme Court (55 N. E. v) to mail notice of submission, while counsel might have computed the time of sub

mission for themselves.

Appeal from Circuit Court, Marshall ty; Smith N. Stevens, Judge.

Action by Ida M. Goshert against the Winona Electric Light & Water Company. Judgment for plaintiff, and defendant appeals. Appeal dismissed.

William D. Frazer, James R. Frazer, J. Edward Headly, and Lemuel W. Royse, all of Warsaw, for appellant.

to one at least of the attorneys representing the appellant; and he relied on that rule, and supposed that he would receive notice of the submission. He did not forward appellant's brief until October 3, 1919. On October 4, 1919, he was informed by one of appellee's attorneys that the cause had been submitted on June 22, 1919. He has received no notice of the submission, and no notice thereof has come to the office of the firm of Frazer, Frazer & Headley. He is informed by his co-counsel that neither of them has received notice of the submission. By reason of the failure to receive notice of the submission he was misled as to the time within which appellant's brief should have been filed. He had no notice of the submission until October 4, 1919. Wherefore, he asks that the submission be set aside and vacated, and that permission be granted to file appellant's brief."

The appellee has filed a motion to dismiss the appeal on the ground that appellant's briefs were not filed within the time fixed by the rule of court.

Section 693, Burns 1914, provides in a genCoun-eral way when appeals in civil cases shall be submitted. The language of that section is somewhat awkward, but it may be ascertained therefrom that an appeal in vacation will be submitted as of course at the expiration of 30 days from the date of service of notice on the appellee of the taking of the appeal, except (1) where otherwise ordered by the court; and (2) where the notice is waived and the appellee has entered a general appearance. Rule 18 of the Supreme Court (55 N. E. v) by implication makes it the duty of the clerk to enter an order of submission at the expiration of 30 days after service of notice on the appellee in every civil cause which does not come within either exception of the statute. By said rule the further duty is imposed upon the clerk, whenever he makes an order of submission under the statute, to "mail notice of such submission to one at least of the attorneys whose names are appended to the assignment of ed" to the assignment of errors in the case errors." The only name (or names) "appendat bar is "Frazer & Frazer," designated "attorneys for appellant."

PER CURIAM. This appeal is from a judgment rendered on the 23d day of May, 1918. Notice of the appeal was served on the clerk of the trial court April 12, 1919, and on the appellee April 24, 1919. The transcript was filed on the 21st day of May, 1919. The cause was submitted on the 20th day of June, 1919. The time allowed appellant for filing its brief expired with the 20th day of August, 1919; but within the time so allowed no brief was filed, and no request was made for an extension of the time for the purpose of filing briefs. By inadvertency the clerk of this court failed to enter an order of dismissal as required by rule 21 (55 N. E. v). On October 7, 1919, appellant filed a petition for permission to file its briefs. The following is the substance of the petition:

"William D. Frazer is the senior member of the firm of Frazer, Frazer & Headley, and is general counsel for the appellant. In the trial of the cause he was assisted by Lemuel W. Royse, of Warsaw, and William B. Hess, of

Plymouth. When it was determined to appeal the cause, the preparation of appellant's brief was assigned to him (W. D. Frazer). He was aware of the rule of court which provides that when a cause is submitted notice shall be given

It should be observed and realized that the

clerk is required to do nothing more than to mail the notice. There is no contention that the clerk failed to discharge that duty. It is apparent that counsel might have computed the time of submission for themselves. In cases like the one at bar the mailing of notice of submission by the clerk seems to be superfluous. Ewbank's Manual, § 178. The rule requiring that appellant's brief shall be filed within 60 days after submission is strictly enforced. Ewbank's Manual, § 179. The appeal is dismissed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[blocks in formation]

MASTER AND SERVANT 386(1)-WORKMEN'S 300 weeks' compensation. Employer A. con-
COMPENSATION ACT; DEATH BENEFIT BASED
ON TOTAL EARNINGS UNDER CONCURRENT

CONTRACTS.

Under Workmen's Compensation Act, as amended by Acts 1919, c. 57, §§ 37, 38, 76c, providing for a death benefit of 55 per cent. of the "average weekly wages" of employé in the "employment" in which he was working, where one employed as janitor under separate concurrent contracts with three employers was killed by a fall while washing windows, the employer served at the time of injury was liable for compensation based on the total earnings received from all the employers, and not on the wages paid himself as in case of joint service provided for by sections 40 and 49.

Enloe, J., dissenting.

Certified question from the Industrial Board.

Certified question from the Industrial Board in proceedings under the Workmen's Compensation Act by the widow of John B. Howard, deceased. Award directed in accordance with court's opinion.

tends that the weekly compensation should be based upon the weekly wage paid by himself, which, under section 40 of the Workmen's Compensation Act (Acts 1915, p. 404), would be $5.50. The widow contends that she is entitled to compensation based upon the total wages or earnings received from Howard's employers, which, under sections 37 and 38 of the Workmen's Compensation Act as amended (Acts 1919, pp. 164 and 165), would be $9.90 per week. The question involves the construction of certain sections of the act. Said section 37 provides:

"When death results from an injury within three hundred weeks, there shall be paid a weekly compensation equal to fifty-five per cent. of the deceased's average weekly wages during such remaining part of three hundred weeks as compensation shall not have been paid to the deceased, on account of the injury in equal shares, to all dependents of the employé wholly dependent upon him for support at the time of

his death."

Clause (c) of section 76 of said act, among other things, provides:

"Average weekly wages' shall mean the earn

in which he was working at the time of the injury during the period of fifty-two weeks immediately preceding the date of injury, divided by fifty-two."

REMY, J. The Industrial Board of Indiana, pursuant to section 61 of the Work-ings of the injured employé in the employment men's Compensation Act (Acts 1915, p. 392), has certified to this court for determination a question of law based upon the following facts: For more than five years prior to June 10, 1919, John B. Howard was a common laborer, and during all of that time was exclusively employed in janitor service. For more than a year immediately prior to June 10, 1919, he was employed under separate contracts of hire by three different employers, A., B., and C. Employer A. conducted an insurance agency, and during all of said year Howard was employed as office janitor. During all of the same year Howard was in the employ of B. as janitor for his flat building, and likewise as janitor for a flat building that C. owned and controlled. During all of said year A. had paid to Howard a weekly wage of $1.25; B., a weekly wage of $12.50; and C., a weekly wage of $4.25-making the total weekly earnings or wages of Howard for said year the sum of $18. Each of said employers knew of the employment of Howard by the others, knew of the services performed, and the wages received. On June 10, 1919, while engaged in the line of his employment in washing windows for A., Howard lost his hold and fell to the sidewalk, thereby receiving injuries which resulted in his death on said date. A. had actual knowledge of the injury to, and the death of, Howard at said time. Howard left surviving him as his sole de

Under these provisions of the act, the widow of Howard is entitled to a weekly compen. sation equal to 55 per cent. of the "average weekly wages" of her husband "in the employment in which he was working at the time of the injury" which resulted in his death. As applied to the facts of this case, what is the meaning of the expression "in the employment in which he was working at the time of the injury"? If it means only the employment of employer A. whose windows he was washing when injured, then the widow will receive a weekly compensation of $5.50. If the expression is construed to mean the employment of Howard by all of his employers, then the widow will receive a weekly compensation of $9.90. The question presented is one of first impression in this state. We have for our guidance, however, the conclusions of those who have specialized in workmen's compensation laws, and the decisions of courts of other jurisdictions where similar laws are in force. Honnold, in his excellent treatise on Workmen's Compensation (volume 1, p. 585), says:

"In the case of concurrent contracts of service—that is, contracts running concurrently in respect to successive and separate employment

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

« PrethodnaNastavi »