Dodge v. Morrow

Lotz, J.

The appellees sued the appellant for the foreclosure of a mechanic’s lien.

The complaint averred that the appellees did work upon, and furnished materials for, the construction of certain buildings owned by appellant.' The answer was: (1) A general denial; (2) payment; (3) counterclaim, and (4) set-off. The cause was tried by the, court. Finding and judgment in favor of appellees. The only assignment of error is the overruling of the motion for a new trial.

One of the causes for a new trial is that the court erred in overruling appellant’s motion to require the issue joined to be submitted to a jury for trial. The ruling on this motion is presented by a separate bill of exceptions. The record shows that the appellant excepted to the ruling when made, hut no time for filing a bill was given. Subsequently, and at the following term of the court, a bill of exceptions presenting this ruling was signed by the judge and the bill filed. The appellees insist that the ruling on this motion is not properly presented by the record before us. This position is fully sustained by the authorities. Thomas v. Griffin, 1 Ind. App. 457.

The other causes for a new trial all relate to rulings of the court on the trial of the cause, and are presented by a separate bill of exceptions containing the rulings and the evidence given in the cause.

The appellees insist that this bill is not properly authenticated, and for that reason this court should refuse to consider the other causes for a new trial.

The clerk of the court at the end of the transcript certifies “the above and foregoing to be a full, true, and complete transcript of the pleadings and order-book entries, including the judgment of the court except the affidavit of defendant in support of motion for continuance and counter-affidavits thereto by plaintiffs, as the same appears of .record, and of the files in my office at this date.”

An order-book entry immediately preceding this bill of exceptions shows that the bill was filed in open court. There is also a file mark on the bill showing that it was filed with the clerk of the court. The bill was also signed by the judge, who presided at the trial. The bill is sufficiently authenticated.

One of the causes for a new trial is that the court erred in permitting a witness for appellees to testify as to the value of attorney’s fees.

It is contended that the statute, section 7267, R. S. 1894 (Elliott Sup., section 1701), is unconstitutional, and in violation of section 23 of -the bill of rights of the constitution of this State. The position is that the statute allowing attorney’s fees grants privileges to one class of litigants, which are denied to another class of litigants.

The legislative power to compel an unsuccessful party to an action to pay an attorney fee to his opponent, and laws which impose a penalty of double damages or some similar penalty, have often received the attention of courts of last resort. Where the penalty has been imposed for some tortious or negligent act, such statutes have generally been upheld. But where no wrongful or negligent conduct is imputed to the defeated party, any attempt to charge him with a penalty has not prevailed. Hocking Valley Coal Co. v. Rosser (Ohio S. C.), 41 N. E. Rep. 263 (29 L. R. A. 386).

If it were necessary to a determination of this appeal that the constitutionality of a statute be determined, this court would not have jurisdiction. In the view we take of it, the appeal can be determined without deciding any constitutional question.

The seventh cause for a new trial is ‘ ‘ For error of law occurring at the trial in the court, over the objection and exception of the defendant, permitting Levi Deitch to read the plaintiff’s books of account in evidence.”

Levi Deitch was a witness for appellees and their bookkeeper. The witness testified that he made the entries upon the books each day and in the regular course of his duties. In reference to the items in controversy, he stated that he had no independent recollection that the goods were furnished and work done, but that he would have to depend upon the books except as to a few items. The usual method of transacting the business was for others to do the work and furnish the materials, and then inform him, or by furnishing him with a memorandum from which he made the entries upon the books. The witness was then asked to turn to the books and read the various entries to the court. The appellant, objected to these questions for the reason, among others, that it had been shown by the witness that the entries were entered upon the representation made by another party, and made after the work was done or materials furnished, and that it was incompetent to prove book accounts in this manner. Twenty-seven questions of this kind were propounded to which the appellant entered his objections. These objections were overruled and the witness was permitted to read the items in evidence from the books.

A book of original entries is one exhibiting the first or original charges. Such books are admissible in evidence in some jurisdictions. This seems to be the rule in England, Price v. Earl of Torrington, 1 Salkeld, 285. The rule is designed to prevent a failure of justice, and is limited by this necessity. If the proof can be made by any person who has personal knowledge of the fact, then the books are not admissible. If the book-keeper’s memory has failed as to the facts or if he is dead or beyond the jurisdiction of the court, and there is no other person who has knowledge of the charges, then a necessity may exist. To be admissible, the entries must have been made cotemporaneously with the facts to which they relate and made by the person having personal knowledge of the facts. It was held in an early case in this State that the books of original entries are not admissible. DeCamp v. Vandagrift, 4 Blackf. 272. The later decisions throw some doubt on this question. This court recently had occasion to review many of the decisions relating to this question, and it needs no further consideration at this time. Wilber v. Scherer, 13 Ind. App. 428.

Filed November 7, 1895.

It is sufficient for the purposes of this case to say that there was not a sufficient showing that all the entries introduced or read in evidence were made, by the person having personal knowledge and were not madecotemporaneously with the transactions. Nor was there a sufficient showing of the existence of a necessity such as would prevent a failure of justice. It was error to admit this evidence under these circumstances.

Judgment reversed with instructions to sustain appellant’s motion for a new trial.