Midland R. Co. v. Trissal.

estate subject to sale. It is evident, therefore, that the ap pellant was not damaged by the conveyance of said real estate."

We think this case fully decides the case under consideration, and that the trial court erred in overruling appellants' motion for a new trial. Judgment reversed, with instructions to the trial court to sustain appellants' motion for a new trial.

MIDLAND RAILWAY COMPANY v. TRISSAL.

[No. 3,618. Filed November 25, 1902.]

APPEAL AND ERROR.—Bill of Exceptions.—Motions.-The words "here insert" in the bill of exceptions do not make a motion to strike out parts of a pleading a part of the bill, although the motion is set out in another part of the transcript. p. 80.

MASTER COMMISSIONER.-Finding.—Conclusions of Law.-No error was committed in refusing to strike out conclusions of law in a commissioner's report, where the finding was sufficient to support the judgment. pp. 81-83.

SAME.-Evidence.-Appeal and Error.-Where at the time of the rendition of judgment on a commissioner's report, a motion was pending to require the commissioner to file a transcript of the evidence, and the transcript was filed after rendition of judgment, the transcript should be considered to be a part of the master's report. p. 83.

From Madison Circuit Court; J. F. McClure, Judge.

Suit by one Wilcox against the Midland Railway Company to foreclose a mechanic's lien. Francis M. Trissal filed a cross-complaint for attorney's fees, the case was submitted to a master commissioner and judgment was rendered on the commissioner's report in favor of Trissai, and the railway company appeals. Affirmed.

W. R. Crawford, U. C. Stover and W. H. Najdowski, for appellant.

A. H. Shirts and W. R. Fertig, for appellee.

ROBINSON, J.-One Wilcox sued appellant and Holloran and Ingerman to foreclose a mechanic's lien on ap

Midland R. Co. v. Trissal.

pellant's road. Holloran and Ingerman filed a cross-complaint to foreclose liens held by them. In that action appellee was the attorney for Holloran and Ingerman. A trial resulted in a judgment and decree in favor of Wilcox upon the complaint, and in favor of the cross-complainants on their cross-complaint for $3,594.94, and the further' sum of $355.64 attorney's fees for services in that action. Appellee had rendered Holloran and Ingerman other services, but it was agreed that appellee should charge the sum allowed by law for foreclosing mechanic's liens, and an additional sum which made the total $696. After the decree was entered upon the order-book, appellee entered upon the margin thereof a notice of his intention to hold a lien upon the judgment and decree in favor of Holloran and Ingerman for $696 for his services as attorney. Afterwards appellant prosecuted an appeal to the Supreme Court, and the judgment and decree as to Wilcox was affirmed, and as to Holloran and Ingerman was reversed, and cause remanded "with instructions to restate findings upon the questions growing out of the judgment in favor of laborers and material men, and the conclusions in reference thereto, and to deduct from the amount due the crosscomplainants the aggregate amount of such judgments. In all other respects than those indicated the judgment is affirmed." Midland R. Co. v. Wilcox, 122 Ind. 84.

After the recovery of the original judgment and decree, Holloran and Ingerman began another action against appellant for the foreclosure of another lien for work done after the filing of their original cross-complaint, in which action appellee was their counsel, but was not a party to the action. In this action appellant filed a cross-complaint alleging, among other things, that Holloran and Ingerman had taken an assignment of the construction contract from the original contractors, and had undertaken to complete the same according to its original terms, and that they had afterwards abandoned the work, and that the amount which it

Midland R, Co. v. Trissal.

would cost to complete the work, added to the amount that had been paid the contractors and their successors, Holloran and Ingerman, would exceed the full construction. contract price by many thousand dollars, and that by reason. of the abandonment of the contract appellant had been damaged. The cross-complainant further alleged the recovery of the judgment by Holloran and Ingerman and the decree of foreclosure. The prayer of this cross-complaint was for an accounting of all work done under the construction contract and of amounts paid thereon by appellant, and for judgment against Holloran and Ingerman and their predecessors, and that the sum paid be made a set-off and payment of the original judgment and decree in favor of Holloran and Ingerman. This cause came up for trial, and in September, 1887, the court found that there was due the railway company a certain amount, which was in excess of the judgment theretofore rendered for $3,594.94, and that the company was entitled to have that judgment paid. and satisfied by application as a set-off, as far as necessary, out of the sum found to be due the company, and decreed that the judgment for $3,594.94 and cost of suit was fully paid and discharged, and that Holloran and Ingerman, their agents and attorneys, be enjoined from enforcing or attempting to enforce the same or any part thereof, and directing Holloran and Ingerman to enter satisfaction of such judgment upon the margin of the order-book of the circuit court. An appeal was taken by Holloran and Ingerman to the Supreme Court, which appeal was dismissed (Holloran v. Midland R. Co., 129 Ind. 274), and the decree of the circuit court in the last named action remains in full force and effect. There was no attempt to set off against the amount assessed in favor of the company in the last named action the decree in favor of Holloran and Ingerman, except as to the sum of $3,594.94; and that the sum of $355.64 assessed and allowed as attorney's fees was not taken into account nor deducted in estimating and adjudg

Midland R. Co. v. Trissal.

ing the amount of recovery in favor of the railway company on its cross-complaint; that the abandonment of the construction contract and the right of set-off thereby found to arise in favor of the company was subsequent to the rendition of the services of appellee in the original action, and for which his attorney's lien was entered on the decree in the order-book and for part of which services the sum of $355.64 was assessed by the circuit court; that after deducting the credits which the Supreme Court held the company was entitled to upon the appeal, there would have remained a large amount in excess of the amount of the attorney's lien due Holloran and Ingerman; that appellee has never received anything for his services; that Holloran and Ingerman, at the date of the judgment and decree on their original cross-complaint, were wholly insolvent and have ever since remained so, and that the sum of $355.64, nor any part thereof, has ever been paid by appellant or any other person.

Appellee filed his petition to become a party in the original action, which was granted, and leave given to file a cross-complaint. The case was tried before a master commissioner under the following order: "Come now the parties by counsel, and this cause is referred to Hon. E. D. Reardon, as master commissioner, to hear evidence, and report his findings thereon." The facts above set forth are substantially the findings of the commissioner, upon which judgment was rendered in appellee's favor.

To question the court's ruling upon a motion to strike out parts of a pleading, the motion and the court's ruling must be brought into the record by a bill of exceptions or order of court. The words "here insert" in the bill do not make the motion a part of the bill, although the motion is set out in another place in the transcript. Ewbank's Manual, §26; Dudley v. Pigg, 149 Ind. 363; State, ex rel., v. Halter, 149 Ind. 292; Allen v. Hollingshead, 155 Ind. 178; Brown v. Langner, 25 Ind. App. 538.

Midland R. Co. v. Trissal.

Appellant's counsel have argued principally the insufficiency of the evidence to authorize the findings made by the master. Counsel for appellee contend that the evidence is not in the record. On October 3, 1899, the commissioner filed "his findings of facts and conclusions of law thereon." On the same day appellant filed objections and exceptions to the report. On November 7, 1899, appellant filed its motion to require the commissioner to "certify the transcript of the evidence taken in this cause." On the same day appellant filed its motion to strike from the report the conclusions of law. On the 2d day of January, 1900, the court overruled appellant's objections and exceptions to the report, and sustained appellee's motion for judgment on the findings and conclusions of law, and on the same day rendered judgment. On the 4th day of January, 1900, the court sustained the motion requiring the commissioner to file a transcript of the evidence, ordered the commissioner to file the transcript at once, and overruled the motion to strike out the commissioner's conclusions of law. On January 5, 1900, the following entry was made: "Comes now Edward D. Reardon, the master commissioner before whom this cause was tried, and files the longhand manuscript of the evidence taken in this cause, which transcript is in the words and figures following, to wit." This is followed by what purports to be the evidence taken before the commissioner, which is certified to by the commissioner as the transcript of all the evidence taken before him. On the 26th day of January, 1900, appellant filed its motion for a new trial. On March 3, 1900, appellant filed its bill of exceptions which contained the commissioner's report, appellant's exceptions and objections thereto, and appellant's motion to strike from the master's report the conclusions of law. On June 25, 1900, appellant's motion for a new trial was overruled.

It appears that on June 11, 1894, the case was referred generally to a master commissioner for trial, to which apVOL. 30-6