Campbell v. Campbell
| Decision Date | 12 December 1889 |
| Docket Number | 13,800 |
| Citation | 23 N.E. 81,121 Ind. 178 |
| Parties | Campbell v. Campbell |
| Court | Indiana Supreme Court |
From the Lake Circuit Court.
Judgment affirmed.
M. Wood and T. J. Wood, for appellant.
W Johnston, for appellee.
The complaint in this case consists of three paragraphs. The first alleges, in substance, that on the 6th day of May 1867, the appellant executed to Samuel Campbell his promissory note for the sum of one hundred and eighty-five dollars, due six months thereafter; that the said Samuel Campbell died intestate on the day of May, 1884, leaving no debts or obligations outstanding against him, and owning no other property than said note; that no letters of administration have been granted upon his estate; that he left the plaintiff as his widow, and the defendants herein as his only heirs at law, and that the plaintiff took said note as a part of the sum allowed her by statute as his widow.
The second paragraph of the complaint is upon the note referred to in the first paragraph, and alleges the death of Samuel Campbell, leaving the plaintiff and the defendants as his widow and heirs at law; that his estate is not indebted, and that no letters of administration have been granted, and that the defendants, except the appellant, have assigned their interest in said note to the appellee, Elizabeth Campbell.
The third paragraph of the complaint is substantially the same as the first, except that it is on a different claim.
The appellant filed a demurrer to the first and second paragraphs of the complaint, alleging, as cause:
The court overruled the demurrer, and the appellant excepted.
The assignment of errors calls in question the ruling of the court in overruling the above demurrer.
A demurrer to a complaint, assigning as cause that the plaintiff has no legal capacity to sue has reference only to some legal disability of the plaintiff, such as infancy, idiocy, or coverture, and not to the fact that the complaint does not show a right of action in the plaintiff. Dale v. Thomas, 67 Ind. 570; Dewey v. State, ex rel., 91 Ind. 173; Traylor v. Dykins, 91 Ind. 229; Pence v. Aughe, 101 Ind. 317.
It does not appear on the face of the complaint, in this cause, that the appellee, Elizabeth Campbell, was under any legal disability, and the court, therefore, did not err in overruling the demurrer for the first cause assigned.
Section 339, R. S. 1881, provides for six different causes of demurrer to the complaint, and declares that a demurrer shall be...
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