Baughan v. Baughan

• Decision Date: 15 February 1888
• Docket Number: 13,902
• Citation: 15 N.E. 466,114 Ind. 73
• Parties: Baughan et al. v. Baughan
• Court: Indiana Supreme Court

15 N.E. 466

114 Ind. 73

Baughan et al. v. Baughan

No. 13,902

Supreme Court of Indiana

February 15, 1888

Reported at: 114 Ind. 73 at 76.

From the Delaware Circuit Court.

The judgment is reversed, with costs, and the cause is remanded with instructions to sustain the motion for a venire de novo.

T. B Redding, R. S. Gregory and A. C. Silverburg, for appellants.

J Brown, W. A. Brown and G. H. Koons, for appellee.

OPINION

Howk, J.

In this case appellee, John Baughan, as plaintiff, sued the appellants, William and James Baughan, as defendants. In his complaint plaintiff declared upon a written agreement, executed by himself and defendants, of which the following, omitting the signatures, is a copy: "An article of agreement, made and entered into between John Baughan, Sr., and William Baughan. The said John Baughan agrees to give to the said William Baughan five hundred dollars and his household goods; and for and in consideration of said amounts, the said William Baughan agrees to take care of, maintain and support the said John Baughan his lifetime in a good and careful manner, and, after his death, the said William is to decently bury him and pay all expenses. If said John dies seized of any other property, said William is to have it all, including property and moneys. Said William is to give James Baughan as surety on the above contract. Dated this 7th day of June, 1882."

Plaintiff alleged in his complaint that he had in all respects performed his part of said agreement, and had demanded that the defendant should take care of, maintain and support him, plaintiff; but that defendant William Baughan had failed and refused, since August 1st, 1885, to maintain, support and take care of the plaintiff; that, by reason of the premises, a cause of action had accrued to plaintiff, and he was damaged in the sum of $ 1,000, and it was and would be reasonably worth that sum of money to keep, maintain and take care of plaintiff. Wherefore, etc.

Defendants answered in five paragraphs, of which the first was a general denial of the complaint, the second and fifth were pleas of set-off, the third stated a special defence, and the fourth paragraph was a counter-claim, wherein defendants demanded judgment for their damages in the sum of $ 1,000.

Plaintiff replied by a general denial of the affirmative paragraphs of answer. The issues joined were tried by a jury, who returned into court two general verdicts, each signed by their foreman, of the tenor following, to wit: (1) "We, the jury, find for the plaintiff and assess his damages in the sum of eight hundred dollars." (2) "We, the jury, find for the defendants on the counter-claim and set-off, and assess the damages in the sum of three hundred dollars."

Over defendants' motions for a venire de novo and for a new trial, the court rendered judgment that plaintiff recover of the defendants the sum of five hundred dollars, together with his costs, taxed at $ ___, etc.

The first error of which complaint is here made in argument by defendants' learned counsel, is the overruling of the motion for a venire de novo.

We are of opinion that this error is well assigned, and that on account of such error the judgment of the trial court can not stand, but must be reversed. The rule is almost elementary which requires that the judgment must follow the verdict. In apparent recognition of this rule the plaintiff moved for a judgment on the verdict in the sum of $ 500, and ...