Ashton v. Shepherd

• Decision Date: 19 September 1889
• Docket Number: 13,897
• Citation: 22 N.E. 98,120 Ind. 69
• Parties: Ashton v. Shepherd
• Court: Indiana Supreme Court

22 N.E. 98

120 Ind. 69

Ashton v. Shepherd

No. 13,897

Supreme Court of Indiana

September 19, 1889

From the Fulton Circuit Court.

Judgment affirmed.

G. W Holman and R. C. Stephenson, for appellant.

J. S Slick and F. H. Terry, for appellee.

OPINION

Coffey, J.

The complaint in this cause consists of two paragraphs. The second is based upon a promissory note, and the first avers that the appellant is indebted to the appellee in the sum of $ 5,153.05 for money had and received of the appellee for the use of the appellant, at his special instance and request, which is due and wholly unpaid. An itemized account is filed with the first paragraph of the complaint, showing various sums of money paid to Charles H. Nix, to the treasurer of Fulton county, and to the marshal of the town of Rochester, Indiana.

A trial of the cause by the court, without the intervention of a jury, resulted in a finding in favor of the appellee for the sum of $ 165.82 on the second paragraph of the complaint, and for the further sum of $ 2,567.44 on the first paragraph. The appellant filed a motion for a new trial, which was overruled, and he excepted. The court then rendered judgment on said finding.

The errors assigned are:

1st. That the first paragraph of the complaint does not state facts sufficient to constitute a cause of action.

2d. That the circuit court erred in overruling the appellant's motion for a new trial.

The first assignment of error presents no question for the consideration of this court. It can not be assigned as error that a particular paragraph in a complaint does not state facts sufficient to constitute a cause of action. Such assignment must be predicated upon the complaint as an entirety, and if there is a good paragraph in the complaint the assignment will be unavailing. Higgins v. Kendall, 73 Ind. 522; Iles v. Watson, 76 Ind. 359; Trammel v. Chipman, 74 Ind. 474; Carr v. State, ex rel., 81 Ind. 342; Schuff v. Ransom, 79 Ind. 458; Haymond v. Saucer, 84 Ind. 3; Louisville, etc., R. W. Co. v. Peck, 99 Ind. 68; Ludlow v. Ludlow, 109 Ind. 199, 9 N.E. 769; Louisville, etc., R. W. Co. v. Ader, 110 Ind. 376, 11 N.E. 437.

If a defendant desires to test the sufficiency of a particular paragraph in a complaint, he must do so by demurrer.

The evidence in the cause tends to prove that prior to the 11th day of November, 1878, the appellant was the owner of what was known as the Ashton Machine and Foundry property in the city of Rochester, Indiana, and while so the owner of said property, judgments were rendered against him in the circuit court, upon which Augustine Meisch became replevin bail. For the purpose of indemnifying said Meisch, and to save him harmless on account of his liability as such replevin bail, the appellant, on the 11th day of November, 1879, conveyed said property to the said Meisch and his wife Catharine. Meisch being unable to pay the judgments, with the consent of the appellant, he and his wife conveyed the property to Charles H. Nix, who undertook to pay the judgments, and who, in consideration of such conveyance, agreed that appellant might sell the property within a given time, and after repaying to Nix the amount of money expended by him, with the interest thereon, should retain the remainder for his own use. The appellant subsequently procured the said Nix to convey said property to the appellee upon her making arrangements with him, to his satisfaction, for the amount he had advanced for the use of the appellant, the amount being $ 5,000. It was agreed between the appellant and the appellee that the appellant should repay all sums of money paid out by her for his use, and that she should hold the title to said property as security for the performance of said agreement. At the time of the conveyance from Nix to the appellee she paid him, by the assignment of a note and mortgage, the sum of $ 1,882.40, and executed to him her notes, payable in equal installments, in one, two, three, four and five years, for the balance of the $ 5,000, and secured the payment of the same by a mortgage back upon the property. She paid the taxes on said property, and subsequently paid two of said notes, together with a large amount of interest, and being unable to pay the remainder of the $ 5,000, the mortgage given to secure the same was foreclosed and the property sold. During all this time the appellant remained in the possession of the property, paying no rent therefor.

It was objected to the introduction of the evidence tending to prove these facts, that this was an action for money had and received, and that they did not tend...