The Aurora National Bank of Aurora v. Black et al.
place it in the power of corporations to defeat the purpose the Legislature had in view, as they might, upon approaching insolvency, defeat such liens by selling and transferring all their property. Those dealing with such corporations must know the law and must take notice that the wages of employees is a lien upon their property, and that the title acquired by purchase or otherwise from a corporation is subject to such lien.
We are, therefore, of opinion that the contract in controversy was properly within the meaning of the statute under consideration, and that the employees of Cobb's Iron and Nail Company acquired a lien thereon for their unpaid wages.
A controversy arose among the numerous owners of the property formerly owned by the corporation and persons holding liens thereon, as to what property should be first exhausted in payment of the liens due from the company to the employees.
It appears from the special finding of facts that the contract for the delivery of the scrap-iron, transferred to the appellant, was the property last transferred by Cobb's Iron and Nail Company. The court stated as a conclusion of law that this contract should be subject to the payment of the liens held by the employees before resort was had to property transferred at an earlier date.
In this we do not think the court erred. Where several parcels of property are encumbered by a lien to secure a debt due from the owner, and such owner disposes of the property in parcels to different persons at different periods, the property last disposed of must be exhausted in payment of the debt before resorting to the other parcels. There is no contribution in such cases. Savings Bank v. Creswell, 10 Otto, 630; Britton v. Updike, 3 N. J. Eq. 125; Gouverneur v. Lynch, 2 Paige, 300; Hahn v. Behrman, 73 Ind. 120; Houston v. Houston, 67 Ind. 276; Aiken v. Bruen, 21 Ind.
The Aurora National Bank of Aurora v. Black et al.
137; McCullum v. Turpie, 32 Ind. 146; Henderson v. Truitt, 95 Ind. 309; Higham v. Harris, 108 Ind. 246.
In such cases the purchasers must answer in the order in which they have purchased, the last purchaser first and the first purchaser last. The same rule applies to subsequent liens placed upon the property in good faith.
In this case the liens for wages due the employees of the corporation covered all the property owned by such corporation, and was a common burden. All who acquired title to such property, or liens upon it, acquired such title or lien. subject to the prior and superior liens of those to whom wages were due. For the payment of such superior lien the property last owned by the corporation should be first exhausted, and so on back, in the inverse order of its disposition by the owner at the time the superior lien attached. This was the view entertained by the circuit court, and it follows that its decree, based upon this view of the law, was
not erroneous.
Judgment affirmed.
Filed Dec. 8, 1891.
ABATEMENT, PLEA IN.
See COUNTY COMMISSIONERS, 3.
ACCOUNTING.
See GUARDIAN AND WARD, 1.
See COUNTY COMMISSIONERS, 4, 5.
In Whose Name may be Brought.-A person for whose benefit a contract
was made, may, in equity, maintain an action thereon in his own
1. Agreed State of Facts.-An agreed state of facts is not an agreed case
under section 553, R. S. 1881, providing for submitting agreed cases.
Witz v. Dale, 120
2. Same. Where, as here, the proceeding on its face appears to be an
actual adversary proceeding, and there is nothing to indicate that it is
a feigned action, the agreement as to the evidence will not change
the character of the case, nor will it overturn the presumption that
there is an actual controversy.
What His Rights are.-An amicus curice may appear, and, with the permis-
sion of the court, introduce evidence for his own benefit, but he can
not except to any ruling made by the court, as he has no right to
complain if the court refuses to accept his suggestion.
ANNEXATION.
See MUNICIPAL CORPORATION, 6.
ANSWERS TO INTERROGATORIES.
See FORCIBLE ENTRY AND DETAINER; PRACTICE, 1 to 6, 9 to 11.
1. Time of Filing Transcript.-Under the act of April 11th, 1885 (Acts
1885, p. 194, Elliott's Supp., section 417), providing that the appeal
bond, in cases governed thereby, shall be filed within ten days after
the decision complained of is made, and that the transcript shall be
filed in the Supreme Court within thirty days after filing the bond,
forty days are given within which to perfect appeals, and the fact that
the appellant files his bond within the ten days will not limit the
time for filing the transcript.
Simons v. Simons, 248
2. Perfection of-Notice to Co-Parties.-Remedying Defect.--Section 633, R.
S. 1881, declares that all appeals must be taken within one year from
the time the judgment is rendered. All appeals not taken in accord-
ance with section 638, R S 1881, providing for appeals in term time,
require notice to be given. Section 635, R. S. 1881, provides that a
part of several co-parties may appeal, but in such cases they must
serve notice of the appeal upon all the other co-parties, and file the
proof thereof in the Supreme Court.
Held, that where a part of several co-parties appeal without complying
with section 635 or 638, the defect can not be remedied, after the time
limited for effecting appeals has expired, by filing in the Supreme
Court a written appearance of a party not appealing and his refusal
to join in the appeal.
Holloran v. Midland R. W. Co., 274
APPELLATE COURT.
See JURISDICTION, 1, 2.
1. Proceedings Supplementary to Execution.- Jurisdiction.-The Appellate
Court has exclusive jurisdiction of a proceeding supplementary to
execution, in aid of the collection of a judgment, where the amount
in controversy does not exceed one thousand dollars. The fact that
it may be necessary for the court to pass upon the validity of a trans-
fer of property, where it incidentally arises, is not sufficient to de-
prive the Appellate Court of jurisdiction.
Harris v. Howe, 72
2. Money Demand.--Jurisdiction —An appeal from a ruling sustaining a
motion by attorneys for the vacation of an order of dismissal of plain-
tiffs' action, and for an allowance of fifty dollars for their fee, is
within the jurisdiction of the Appellate Court.
Courtney v. Courtney, 272
APPOINTMENT TO OFFICE.
See CONSTITUTIONAL LAW, 5.
APPROPRIATION.
See SOLDIERS' MONUMENT.
For Salary.-Constitutional Law.--In an act appropriating money to pay
the salary and expenses of a certain office, a provision that it shall
be paid to a certain person named and none other, is unconstitutional
and void as attempting to adjudicate as to who is the legal officer en-
titled to the salary.
State, ex rel., v. Carr, 44
1. Action for Work and Labor.-Counter-Claim for Fraud-Submission to
Arbitration. Award, Bar to Subsequent Action.--In an action for work
and labor and for material furnished in the construction of a build-
ing, the defendants pleaded a counter-claim claiming damages occa-
sioned by the alleged fraud and misrepresentation of the plaintiffs
in relation to the estimates of material and the cost of construction
of such building. All matters in dispute in the action, matters of
defence, counter-claims, etc., were submitted to arbitration, and a
finding made by the arbitrators in favor of the defendant.
Held, that the award was a bar to any subsequent suit against the plain-
tiffs for the alleged fraud set up in the counter-claim.
Baltes v. Bass Foundry, etc., 185
2. Same.-Joint Tort-Feasors.--Award Against One.-Effect of upon Others.
-The defendants, by setting up their claim for damages on account
of the fraud complained of as a counter claim against one of the al-
leged tort-feasors, and submitting the whole controversy to arbitration,
thereby elected to rely upon such proceeding for their compensa-
tion, to the abandonment of the other tort-feasors.
Ib.
3. Same.--Pleading.--Reply.--Demurrer.--Where, in an action against
such tort-feasors, the answers show that everything connected with the
former action was submitted to arbitrators, and that their award
covered the whole ground of the controversy, a reply is demurrable
which does not dispute the fact that all demands, including that
embraced in the counter-claim, were submitted to arbitration, but
alleges simply that the arbitrators did not award the plaintiffs any-
thing on that account.
4. Same.--Separation of Arbitrators.-Sufficiency of Reply.--It appeared
from the allegations of the reply that the three arbitrators consid-
ered the evidence, and that two of them found for the plaintiffs, and
that one of them drew up an award, which was signed by both of said
arbitrators, when they separated; that after the award had been
signed and the separation taken place the two who had found for
the plaintiffs procured an attorney to draw up another award in favor
of the same party, and for the same amount, and without consultation
with the other arbitrators signed this award and promulgated it.
Held, that the allegations of the reply are not sufficient to show a com-
pletion of the work of the arbitrators and a final separation after the
first award; that the separation, so far as appears from the allega-
tions, may have been only an adjournment to another time and
place, or a mere temporary separation.
Ib.
ARGUMENT OF COUNSEL.
Misconduct.-Statements made by counsel outside the evidence, and ad-
mitted to be so at the time, but which are brought out by a state-
ment of opposing counsel equally objectionable, will not cause the
judgment to be reversed. Galvin v. Meridian Nat'l Bank, etc., 439
ASSAULT WITH INTENT TO KILL.
See CRIMINAL LAW, 8.
ASSESSMENT.
See DRAINAGE; STREETS, 2.
ASSIGNMENT OF ERROR.
See PRACTICE, 3.
ASSUMPTION OF RISK.
See MASTER AND SERVANT, 4 to 8.
ATTORNEY'S FEES.
See INJUNCTION, 4.
BILL OF EXCEPTIONS.
See PRACTICE, 10.
1. Evidence.-How Incorporated.-The evidence in a trial can not be
brought into the record by the words "here insert" in the bill of ex-
ceptions. The original bill must contain the evidence.
2. Exceptions to Master's Report.-Exceptions to a master's report can not
be brought into the bill of exceptions by a "here insert," but they
must be copied into the bill.
Lewis v. Godman, 359
3. Practice.-Evidence.-Where the stenographer's report is referred to
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