United States Fidelity & Guaranty Co. v. State ex rel. Hale

125 N.E. 420, 71 Ind. App. 648, 1919 Ind. App. LEXIS 250

• Court: Indiana Court of Appeals
• Decided: December 17, 1919
• Docket: No. 10,170
• Status: Published

Opinion

Enxoe, J.

— This was an action brought by the appellee, relator, upon a contractor’s bond, in. which he sought to recover an alleged balance due him as a subcontractor on a certain public highway improvement.

There are but two questions presented in this record necessary to be considered in the determination of this appeal. The first relates to the admission of certain evidence, over the objection of appellant, ánd the second involves the construction of §§5901a, 5901b Burns 1914, Acts 1911 p. 437, the appellant contending that under the provisions of these sections it was the duty of the relator to file his claim with the county auditor, as provided for in said sections, and that, not having done so; he had no right of action on said bond.

There is no merit in appellant’s objection to the admitted evidence to which it objected, and the other question has been settled adversely to appellant in the cases of Equitable Surety Co., etc. v. Ind. Fuel Supply Co. (1919), 70 Ind. App. 75, 123 N. E. 22; and Illinois Surety Co. v. State, ex rel. (1919), 69 Ind. App. 450, 122 N. E. 30.

The judgment is therefore affirmed.