Breidert v. Krueger
| Decision Date | 13 October 1883 |
| Docket Number | 10,779 |
| Citation | 92 Ind. 142 |
| Parties | Breidert v. Krueger |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Dec. 15, 1883.
From the Noble Circuit Court.
The judgment is affirmed, at appellant's costs.
V. C Mains, for appellant.
A. A Chapin and R. P. Barr, for appellee.
The appellant sued the appellee on his undertaking as surety for the lessee upon a lease of certain real estate in Noble county, executed by the appellant to one Peck, to recover a certain amount alleged to be due as rent accrued and unpaid. The complaint was in one paragraph. The appellee answered in six paragraphs, and there was a rule to reply. The appellant replied in three paragraphs. The appellee demurred to the second and third paragraphs of the reply severally. Pending the demurrer, the appellee, with consent of the court, withdrew the fifth paragraph of his answer, and the appellant withdrew the first paragraph of his reply. The court then sustained the demurrer to the second and third paragraphs of the reply, to which ruling the appellant excepted. Leave was granted to the appellant to amend the second and third paragraphs of his reply, but he refused to amend, and announced to the court that he would "abide his said reply."
The record next shows that "the plaintiff failing to amend his reply, or to make further reply, the court here now renders judgment in favor of the defendant upon the pleadings in said cause;" and thereupon judgment was rendered for the appellee.
The appellant has assigned that the court erred in sustaining the demurrer to the second and third paragraphs of the reply, in not sustaining said demurrer to the first and sixth paragraphs of the answer, and in rendering judgment on said demurrer against the plaintiff.
The second paragraph of the reply was directed only to the first paragraph of the answer, and the third paragraph of the reply was directed only to the sixth paragraph of the answer. There was no reply to any other paragraph of the answer. The grounds of defence stated in the first and sixth paragraphs of answer were wholly different from those stated in other paragraphs. The second and third paragraphs of answer, which were in substance alike, amounted, perhaps, to argumentative denials. The fourth paragraph was a good plea of full payment.
Section 401, R. S. 1881, provides: "If, from any cause, either party shall fail to plead or make up the issues within the time prescribed, the court shall forthwith enter judgment as upon a default, unless,...
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Helton v. Wells
... ... without a reply to this answer, he waived the same and it was ... taken as denied. Breidert v. Krueger, 92 ... Ind. 142; Buchanan v. Berkshire Life Ins ... Co., 96 Ind. 510; June v. Payne, 107 ... Ind. 307, 7 N.E. 370; Purple v ... ...
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Kern v. Saul
...confessed, and the admission of the truth of the facts alleged in one good paragraph of answer necessarily defeats the action. Breider v. Krueger, 92 Ind. 142. From the judgment rendered against appellant, he had a right to appeal. Rev. St. 1894, § 644 (Rev. St. 1881, § 632). The third and ......
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Kern v. Saul
... ... good paragraph of answer necessarily [14 Ind.App. 74] defeats ... the action. Breidert v. Krueger, 92 Ind ... From ... the judgment rendered against appellant, he had a right to ... appeal. Section 644, R. S. 1894 ... ...
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Adams v. Tuley
...and errors concerning other defences or replies thereto could not prevent such a result or authorize this court to reverse it. Breidert v. Krueger, 92 Ind. 142; Lilly v. Dunn, 96 Ind. 220 The judgment is affirmed, with costs. ...