Baltimore & Ohio Southwestern Railroad v. Harmon

Indiana Supreme Court

Baltimore & Ohio Southwestern Railroad v. Harmon

68 N.E. 589, 161 Ind. 358, 1903 Ind. LEXIS 174

CourtIndiana Supreme Court

DecidedOctober 29, 1903

DocketNo. 20,067

StatusPublished

Cited by1 cases

This text of 68 N.E. 589 (Baltimore & Ohio Southwestern Railroad v. Harmon) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Baltimore & Ohio Southwestern Railroad v. Harmon, 68 N.E. 589, 161 Ind. 358, 1903 Ind. LEXIS 174 (Ind. 1903).

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Opinion

Monks, C. J.

— Appellee sued appellant before a justice of the peace to recover for work and labor performed by him for appellant, and also demanded judgment for penalty and attorney’s fees. A trial of the cause resulted in , a judgment in favor of appellee for the amount demanded. The cause was appealed by appellant to the court below, and the court, at the request of appellant, made [359]*359a special finding of the facts, stated, conclusions of law thereon, and rendered judgment in favor of appellee, which included said penalty and attorney’s fees.

It is claimed that the penalty and attorney’s fees were recovered under §§7056, 7057 Burns 1901, §§5206a, 5206b Horner 1897, Acts 1885, p. 36, and that said judgment was erroneous because said sections, so far as they provide for the. recovery of a penalty and attorney’s fees, are in violation of the state and federal Constitutions. The transcript in this cause was filed in this' court December 29, 1902, and is therefore governed by §§6 and 8 of the act of 1901 (Acts 1901, p. 565, §§1337f, 1337h Burns 1901). This cause was within the jurisdiction of a justice of the peace, and under said sections the only questions that can be presented are those enumerated in §8 of said act of 1901, §1337h, supra, one of which is the constitutionality of a statute. It has been held by this court that before an employe can recover the. penalty and attorney’s fees under said sections, if the same are constitutional, he must allege in his complaint and prove facts showing the absence of the contract mentioned in said §7056, supra. Chicago, etc., R. Co. v. Glover, 159 Ind. 166, 170; Toledo, etc., R. Co. v. Long, 160 Ind. 564. The complaint in the case contains no such allegations, nor are such facts found in the special finding of the court. It is evident, therefore, that the complaint and special finding do not bring the ease within said §§7056, 7057, supra, and therefore no question of their constitutionality is presented by this appeal.

As no question mentioned in §1337h, supra, is presented, by this appeal, the same is dismissed.

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Monks, C. J.

— Appellee sued appellant before a justice of the peace to recover for work and labor performed by him for appellant, and also demanded judgment for penalty and attorney’s fees. A trial of the cause resulted in , a judgment in favor of appellee for the amount demanded. The cause was appealed by appellant to the court below, and the court, at the request of appellant, made [359]*359a special finding of the facts, stated, conclusions of law thereon, and rendered judgment in favor of appellee, which included said penalty and attorney’s fees.

It is claimed that the penalty and attorney’s fees were recovered under §§7056, 7057 Burns 1901, §§5206a, 5206b Horner 1897, Acts 1885, p. 36, and that said judgment was erroneous because said sections, so far as they provide for the. recovery of a penalty and attorney’s fees, are in violation of the state and federal Constitutions. The transcript in this cause was filed in this' court December 29, 1902, and is therefore governed by §§6 and 8 of the act of 1901 (Acts 1901, p. 565, §§1337f, 1337h Burns 1901). This cause was within the jurisdiction of a justice of the peace, and under said sections the only questions that can be presented are those enumerated in §8 of said act of 1901, §1337h, supra, one of which is the constitutionality of a statute. It has been held by this court that before an employe can recover the. penalty and attorney’s fees under said sections, if the same are constitutional, he must allege in his complaint and prove facts showing the absence of the contract mentioned in said §7056, supra. Chicago, etc., R. Co. v. Glover, 159 Ind. 166, 170; Toledo, etc., R. Co. v. Long, 160 Ind. 564. The complaint in the case contains no such allegations, nor are such facts found in the special finding of the court. It is evident, therefore, that the complaint and special finding do not bring the ease within said §§7056, 7057, supra, and therefore no question of their constitutionality is presented by this appeal.

As no question mentioned in §1337h, supra, is presented, by this appeal, the same is dismissed.

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68 N.E. 589, 161 Ind. 358, 1903 Ind. LEXIS 174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baltimore-ohio-southwestern-railroad-v-harmon-ind-1903.

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