Bliss v. Douch

CourtSupreme Court of Indiana
Citation11 N.E. 293,110 Ind. 296
PartiesBliss v. Douch.
Decision Date06 April 1887


Appeal from circuit court, Lake county.

Wood & Wood, for appellant. Jones & Jones, for appellee.


In this case appellant, Bliss, the plaintiff below, has assigned upon the record the following errors, namely: (1) The court below erred in sustaining appellee's demurrer to appellant's amended complaint; (2) there was no legal and competent judge chosen to hear and determine this cause; and (3) the judge chosen by the court to try this cause was not legally chosen, nor duly appointed.”

1. This case is now before this court for the second time. Our opinion and decision on the former appeal herein are reported under the title of Douch v. Bliss, 80 Ind. 316. The judgment below was then reversed, and the cause was remanded, with instructions to sustain the demurrer of Douch to the complaint of Bliss, the plaintiff herein. After the cause was returned to the court below, the demurrer of Douch, in compliance with the mandate of this court, was sustained to the complaint. Afterwards, Bliss filed an amended complaint, to which Douch again demurred, upon the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was sustained by the court below, and, the appellant, Bliss, declining to amend further, judgment was rendered that he take nothing by his suit herein, and that appellee, Douch, recover of him all his costs in this action expended. In our opinion in Douch v. Bliss, supra, on the former appeal of this cause, will be found a full summary of the original complaint of appellant, Bliss, against appellee, Douch, which complaint we then held to be bad on the demurrer thereto, for the want of sufficient facts. We then and there held that, where one of two or more judgment defendants sues the sheriff for neglect of duty, in failing to levy an execution issued on such judgment on the property of the principal defendant, claiming that he is a surety on the judgment, he must allege in his complaint that the question of his suretyship in such judgment had been determined in his favor in a proceeding for that purpose, and an order made by the proper court that the sheriff should first levy upon and exhaust the property of the principal before a levy should be made upon the property of the surety, and that a memorandum of such order was indorsed by the clerk on such execution. For the want of these allegations, it was further held, on the former appeal herein, that the original complaint of appellant, Bliss, was bad on demurrer for insufficient facts.

When an amended complaint was filed by appellant, Bliss, after the cause was returned into the court below, he did not supply, nor attempt to supply, therein the allegations of fact for the want of which we held, on the former appeal herein, his original complaint was bad on the demurrer thereto. The only averments in such amended complaint which are not found in the original complaint, the substance of which we have given in our opinion in Douch v. Bliss, supra, are the following: “And...

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