Anderson v. Kramer

• Decision Date: 26 January 1884
• Docket Number: 9733
• Parties: Anderson et al. v. Kramer et al., Executors
• Court: Indiana Supreme Court

93 Ind. 170

Anderson et al. v. Kramer et al., Executors

No. 9733

Supreme Court of Indiana

January 26, 1884

From the Boone Circuit Court.

J. S Scobey and D. Watts, for appellants.

P. H Dutch and G. W. Stafford, for appellees.

OPINION

Black C.

This was an action brought by Baltzer Kramer against the appellants William B. Matthews, Franklin Rich and James W Anderson, upon a promissory note made to said Baltzer Kramer and one Dutch by said Matthews and Rich, and to foreclose a chattel mortgage given by said makers to said payees to secure said note, the note and mortgage having been assigned by said payees and mortgagees to said Baltzer Kramer, and the mortgaged property having been purchased of the mortgagors by said Anderson.

On a former appeal in the cause, a judgment in favor of the defendants was reversed by this court for error in overruling demurrers to the first and third paragraphs of said Anderson's answer. Kramer v. Matthews, 68 Ind. 172. The allegations of the complaint and of said first and third paragraphs of Anderson's answer are, in substance, shown in the opinion rendered on the former appeal.

The second and fourth paragraphs of answer were pleas of payment, the second pleaded by Anderson, the fourth by Matthews and Rich.

After the cause was remanded to the court below, Anderson amended said first and third paragraphs of his answer, and filed two additional paragraphs of answer designated as additional fourth paragraph and additional fifth paragraph; and the defendants filed a paragraph of answer designated as sixth paragraph.

Demurrers to the first, third and sixth paragraphs of answer were sustained. There was a reply of general denial and a second and special paragraph of reply to the fifth paragraph of answer. A demurrer to said second paragraph of reply was overruled.

The cause was tried by jury, the verdict being in favor of the plaintiff for $ 460.82 and for foreclosure. A motion for a new trial made by the appellants was overruled, and judgment was rendered on the verdict.

After the rendition of the judgment, said Baltzer Kramer died and the appellees became his executors.

The appellants have assigned as errors the action of the court in sustaining the demurrers to the first, third and sixth paragraphs of answer, in overruling the demurrer to the second paragraph of reply, and in overruling the motion for a new trial.

The fifth paragraph of answer is not in the record. That the second paragraph of reply, directed to said fifth paragraph of answer, was not a sufficient reply, can not be determined in the absence of the answer. The overruling of a demurrer to a reply will not be considered by ...