Adams v. Tuley
| Decision Date | 26 May 1891 |
| Docket Number | 132 |
| Citation | 27 N.E. 991,1 Ind.App. 490 |
| Parties | ADAMS, ADMINISTRATOR, v. TULEY ET AL |
| Court | Indiana Appellate Court |
From the Miami Circuit Court.
Judgment affirmed, with costs.
J. F Morrison, A. Sherman and W. E. Mowbray, for appellant.
S. T McConnell and T. J. Tuley, for appellees.
The appellant's complaint consisted of five paragraphs, in each of which it was sought to recover money which was alleged to be due the estate represented by the appellant, and which it was averred the appellees had obtained, in the lifetime of appellant's intestate, through a judgment recovered for the intestate in a certain action instituted and carried on by the appellees as attorneys at law on behalf of the intestate.
The appellees answered in six paragraphs, the first being a general denial, and the second a general answer of payment.
The appellant demurred to the third, fourth, fifth and sixth paragraphs of answer, and the demurrer was overruled.
Appellant then moved to strike out the fifth paragraph of answer, and the motion was overruled.
Appellant replied by denial to the second, third, fourth and sixth paragraphs of answer. To the fifth paragraph of answer he replied in two paragraphs, the first a general denial, the second an affirmative reply. Appellees demurred to this second paragraph of reply, and the demurrer was sustained.
At a subsequent day appellant withdrew all the replies in denial theretofore filed, and appellees withdrew their answer in denial. Appellant declining to plead further, it was found by the court that the appellees were entitled to have judgment on their answers, to which no reply was interposed. Thereupon judgment was rendered that the appellant take nothing by the action, and that the appellees recover their costs of the appellant.
In this court the appellant has assigned as errors the overruling of his demurrer to the third, fourth, fifth and sixth paragraphs of answer, the overruling of his motion to strike out the fifth paragraph of answer, and the sustaining of the demurrer to the second paragraph of reply to the fifth paragraph of answer.
The second paragraph of answer was a good affirmative defence to the entire complaint to which it was addressed. Its sufficiency was not questioned. The appellant replied to it by denial, but afterward withdrew all his replies in denial. The only affirmative paragraph of reply filed was addressed to the...
To continue reading
Request your trial
-
Roemler v. Dice
...Section 392, Burns' 1908; Hibberd v. Trask, 160 Ind. 498-505, 67 N. E. 179;Keys v. Wright, 156 Ind. 521, 60 N. E. 309;Adams v. Tuley, 1 Ind. App. 490, 27 N. E. 991;Kern v. Saul, 14 Ind. App. 72, 42 N. E. 496. The statute and numerous decisions compel an affirmance of the judgment. Judgment ...
-
Quail v. Banta
... ... purpose of the action, be taken as true". Appellees' ... construction of this statute has been upheld in the following ... cases: Adams v. Tuley et al., 1891, 1 Ind.App. 490, ... 27 N.E. 991; Kern v. Saul, 1895, 14 Ind.App. 72, 42 ... N.E. 496; Roemler v. Dice, 1911, 49 Ind.App ... ...
-
Kern v. Saul
...by the statute to take the same as true for the purpose of the action. Rev. St. 1894, § 386 (Rev. St. 1881, § 383); Adams v. Tuley, 1 Ind. App. 490, 27 N. E. 991. The appellant, by a reply of general denial, controverted the answer of payment. On the failure of appellant to reply to the thi......
-
Kern v. Saul
... ... take the same as true for the purpose of the action. Section ... 386, R. S. 1894; Adams, Admr., v. Tuley, 1 ... Ind.App. 490, 27 N.E. 991 ... The ... appellant, by a reply of general denial, controverted the ... ...