Sprankle v. Bart. ment of shorthand court reporters, approved March 3, 1899, Acts 1899, p. 384. Section 5 of said act provides: "Whenever, in any cause, such reporter shall be requested to do so, he shall furnish to either party a transcript of all or any part of said proceedings required by him to be taken or noted, including all documentary evidence, and it shall be his duty to furnish the same written in a plain, legible longhand or typewriting as soon after being requested to do so as practicable, and he shall certify that it contains all the evidence given in the cause." Section 6 of said act is as follows: "The transcript of the evidence so prepared by such reporter shall be filed by him with the clerk of the court wherein said cause is tried, within a time to be fixed by the court trying such cause. The judge of said court shall thereupon attach to the transcript of the evidence so filed by such reporter a certificate that the same is correct and contains all the evidence, and the clerk shall incorporate such transcript of the evidence and the certificate signed by such judge, in the transcript of said cause, and state in his certificate that the same is the transcript of the evidence filed by such reporter, and that the certificate attached is that of the judge, with the date when the same was filed in his office, and said transcript and record, when so prepared, shall be sufficient to present to the consideration of the Supreme or Appellate Court, in the determination of the questions presented to the lower court. trying such cause, and the clerk shall receive no fees for that part of the transcript of record containing the evidence." The act is vague and uncertain in stating "and such transcript and record when so prepared shall be sufficient," etc., and in failing to state what it shall be sufficient to present to the consideration of the court. But treating the act as sufficiently definite for the purpose of determining the questions raised by counsel for appellee, the record before us does not comply with its requirements for the following, among other, reasons: It does not appear that any time Sprankle v. Bart. was fixed by the court in which the transcript of the evidence was to be filed by the reporter with the clerk of the court; the clerk does not certify that the certificate of the judge attached to the transcript of the evidence is that of the judge, with date when the same was filed in his office; the certificate of the clerk does not show when the longhand manuscript of the evidence was filed in his office, nor when it was incorporated in the bill of exceptions. Under this act, for these reasons, the evidence is not in the record. Koontz v. Hammond, 21 Ind. App. 76; National Bank v. Berry, 21 Ind. App. 261. Separate reasons for a new trial are the refusal of the court to give instructions numbered four, five and six respectively requested by appellant. It does not affirmatively appear from the record that these instructions were tendered to the court before the commencement of the argument. It will therefore be presumed that the refusal was upon the ground that they were not tendered in time and were therefore properly refused. Lofland v. Goben, 16 Ind. App. 67, and authorities there cited. It is urged that certain instructions given at the request of appellant are irreconcilably in conflict with certain others given at the request of appellee. To determine the correctness of instructions given would require an examination of the evidence, which is not in the record. The court in the several instructions complained of, announced general propositions of law. It is insisted that between these instructions and others given by the court at the request of appellant in which an attempt is made to apply the law to the evidence, there is irreconcilable conflict. A careful consideration of these instructions in question leads us to the conclusion that the position of appellant's counsel is not tenable. This disposes of all the questions argued; those not discussed are waived. We find no error for which the judgment should be reversed. Judgment affirmed. Advance Mfg. Co. v. Auch. THE ADVANCE MANUFACTURING COMPANY ET AL. v. AUCH. [No. 3,267. Filed December 18, 1900.] APPEAL.-Joint Assignment of Errors.-Where three parties have joined in an appeal by the assignment of joint errors, and have filed a joint brief, it is too late for two of them to say that they decline to join in the appeal of their co-appellant. p. 690. SAME.—Joint Assignment of Error.—A joint assignment of error must be good as to all the appellants who join therein, or it will not be good as to any. pp. 690-692. WORK AND LABOR.-Foreclosure of Laborer's Lien.-Complaint.-In an action to recover for work and labor performed, and to foreclose a laborer's lien, if the complaint states facts sufficient to support a personal judgment, it will be good against a demurrer, although it may not state facts sufficient to justify a foreclosure of the lien. pp. 690, 691. From the Marion Superior Court. Affirmed. Robert Denny and G. W. McDonald, for appellants. WILEY, J.-Appellee was plaintiff below, and sued appellant and others to recover for work and labor performed for appellant, the Advance Manufacturing Company, and to foreclose a laborer's lien under the statute. The complaint avers that on and for some time prior to November 6, 1896, the said manufacturing company, a corporation, was engaged in manufacturing and selling furniture, etc.; that it owned and used a large amount of machinery, tools, appliances, etc., describing them; that all of said machinery, etc., was located within the buildings and structures constituting the manufacturing plant, and that said buildings, etc., were located upon certain real estate, describing it. The complaint also avers that for two years prior to said 6th of November, 1896, said manufacturing company had been and was hopelessly insolvent; that at no time from June, 1894, to November 6, 1896, or thereafter, was said Advance Mfg. Co. v. Auch. corporation solvent; that on said last named day said. corporation executed a general deed of assignment to the appellant Kramer of all its property for the benefit of its creditors; that prior to said assignment, by a contract between said manufacturing company and appellee, which contract was made in 1894, appellee was to perform manual and mechanical labor for said appellant corporation at a fixed and stipulated price per day; that appellee performed all the duties required of him under said contract; that he performed such labor until said company ceased to operate its plant, shortly prior to said assignment; that the last eighteen days' labor so performed by him has not been paid for; that said labor is of the reasonable value of $37.16, and that by reason thereof said company is indebted to him in said sum, which is due and unpaid. The complaint avers that the Indianapolis Engine Company and appellants Neerman and Kramer each claim to have some interest in, title to, and lien upon the said property of said manufacturing company, but that such interest, title, and lien, if any, is inferior to appellee's lien for work and labor, and that said engine company and appellants Neerman and Kramer are made defendants to answer to their said interests. The prayer of the complaint is for judg ment against the Advance Manufacturing Company, that said sum be declared a lien against the said property described; that said property be sold, and out of the proceeds, after the payment of costs, his claim be paid, and that the right, title, and lien of all of said defendants (appellants) be forever barred, etc. Each of the original defendants answered separately, the answer of Kramer being in two paragraphs, and that of the manufacturing company and Neerman in four paragraphs. A demurrer to the second paragraph of Kramer's answer, and to the second and third paragraphs of Neerman's and the manufacturing company's answers, was overruled, and a separate demurrer to the fourth paragraphs of answer of the last two named appellants was sustained. Advance Mfg. Co. v. Auch. The appellee replied to these several second and third paragraphs of answers in three paragraphs, to the second and third of which separate demurrers were sustained. Upon the issues thus joined, the cause was tried by the court, resulting in a finding and judgment for appellee. The appellants moved separately for a new trial on the ground that the decision was not sustained by sufficient evidence and was contrary to law. This motion was overruled. The assignment of errors is joint, and is as follows: "The appellants say there is manifest error in the judgment and proceedings in this cause in this: (1) The complaint does not state facts sufficient to constitute a cause of action; (2) the court erred in sustaining the demurrer of appellee to the fourth paragraph of the separate answer of the Advance Manufacturing Company to the amended complaint; (3) the court erred in sustaining the demurrers of appellee to the fourth paragraph of the separate answer of Gustave A. Neerman, trustee, to the amended complaint; (4) the court erred in overruling the motion of the Advance Manufacturing Company for a new trial; (5) the court erred in overruling the motion of Gustave A. Neerman, trustee, for a new trial; (6) the court erred in overruling the motion of Andrew Kramer, assignee of the Advance Manufacturing Company, for a new trial." The record shows that all of the appellants prayed an appeal in term time, which was granted upon filing an appeal bond. Appellant, the Advance Manufacturing Company, filed an appeal bond, but neither of the other appellants did. The bond filed shows that the manufacturing company appeals from the judgment rendered against it. The appeal bond was filed July 26, 1899, and the record lodged in this court September 22, 1899. The record shows. that the assignment of errors was made when the transcript was filed. Appellants' brief was filed November 28, 1899. September 26, 1900, appellants, the Advance Manu VOL. 25-44. |