Anderson v. Lipe
| Decision Date | 09 May 1888 |
| Docket Number | 13,275 |
| Citation | 16 N.E. 833,114 Ind. 464 |
| Parties | Anderson et al. v. Lipe |
| Court | Indiana Supreme Court |
From the Knox Circuit Court.
The judgment is reversed, with costs, and the cause remanded with instructions to overrule the motion in arrest and render judgment for plaintiffs for the damages assessed.
H. S Cauthorn and J. M. Boyle, for appellants.
W. A Cullop, G. W. Shaw and C. B. Kessinger, for appellee.
In this case, the only error assigned here by appellants, the plaintiffs below, is the sustaining of defendant's motion in arrest of judgment, and the rendition of judgment in his favor.
The suit originated before a justice of the peace of Knox county, before whom the defendant recovered a judgment, from which plaintiffs appealed to the court below. There the cause was tried by the court, and a finding was made for the plaintiffs, assessing their damages in the sum of $ 67.60. Defendant's motion for a new trial having been overruled, he then moved the court, in writing, to arrest judgment on its finding herein. This motion was sustained by the court; and, over plaintiffs' exceptions to such ruling, the court adjudged that judgment on its finding aforesaid should be arrested. From such judgment of the court, the plaintiffs now here prosecute this appeal, and assign as the only error, of which they complain, the ruling of the court below in arresting judgment on its finding, in their favor and against defendant herein, for their damages assessed as aforesaid.
Manifestly, the only question presented for our decision, by the record of this cause, and plaintiffs' assignment of error thereon, is this: Are the facts stated in plaintiffs' complaint sufficient, after trial and finding thereon, to constitute a cause of action, and to sustain a judgment in their favor and against the defendant herein?
Plaintiffs commenced this suit, as we have heretofore said, before a justice of the peace of Knox county. Their complaint, as filed before the justice, contained two paragraphs; but, before the cause was tried by the court below, they dismissed the second paragraph of their complaint, at their costs. This left the first paragraph as their only complaint properly in the record, and it will be spoken of and considered as such complaint in this opinion.
On the 1st day of August, 1885, plaintiffs, Anderson and Weissenberger, filed their complaint herein, before such justice of the peace, wherein they alleged that defendant, Lipe, was justly indebted to them in the sum of $ 100, for that, whereas, theretofore, to wit, on the 25th day of June, 1885, such defendant executed and delivered to said plaintiffs, by the name and style of "Gas-Fitting Co.," his promissory note, of which the following is a copy:
(Signed), "Vincennes M'f'g Co.
That the said note was justly due, and, together with the interest accruing thereon, remained unpaid, to plaintiffs' damage $ 100, for which sum they demanded judgment, etc.
It is not shown by the record of this cause that the sufficiency of plaintiffs' complaint was called in question by defendant before the justice or in the circuit court, by his motion to dismiss or his demurrer for the alleged want of facts therein. But after the cause had been fully heard and determined, and after the court had found for the plaintiffs and assessed their damages as aforesaid, and after the court had overruled defendant's motion for a new trial herein, then, for the first time, defendant assailed the sufficiency of plaintiffs' complaint by his motion in arrest of judgment on the court's finding, upon the following grounds, namely: (1) "Because the complaint does not state facts sufficient to constitute a cause of action;" and (2) because "the...
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