Bryan v. Scholl

• Decision Date: 02 February 1887
• Docket Number: 12,763
• Citation: 10 N.E. 107,109 Ind. 367
• Parties: Bryan v. Scholl
• Court: Indiana Supreme Court

10 N.E. 107

109 Ind. 367

Bryan v. Scholl

No. 12,763

Supreme Court of Indiana

February 2, 1887

From the Clinton Circuit Court.

The judgment is affirmed, with costs.

J. V Kent and J. W. Merritt, for appellant.

S. H Doyal and P. W. Gard, for appellee.

OPINION

Mitchell, J.

This was a suit in ejectment, the complaint being in the usual form for the recovery of real property.

The defendant filed an answer which is denominated a plea in abatement. It alleged, in substance, that the plaintiff based his right to recover the land in dispute upon a decree of foreclosure, given against the defendant by the Clinton Circuit Court, in favor of one Heavilon. It was averred, that within a year from the rendition of the decree through which the plaintiff claimed, the defendant below filed his complaint in the proper court, asking for a review of the judgment and decree, and that such proceedings were had in that behalf, as that the Clinton Circuit Court, upon the hearing, adjudged that he was not entitled to a review, and gave judgment against him accordingly.

The answer alleged further, that the defendant had prayed an appeal from the judgment in the proceedings for review, to the Supreme Court; that he had filed an appeal bond, and directed the clerk to make a transcript of the record, which he intended to file in the office of the clerk of the Supreme Court, immediately upon its completion.

Upon the facts thus summarized, the court was asked to hold the proceedings in abeyance until the proposed appeal should be decided.

A demurrer was sustained to the answer, and this ruling is assigned as error.

The answer was clearly insufficient for any purpose. It shows affirmatively that no appeal had been perfected at the time of the commencement of this suit, and if a perfected appeal from the judgment in the proceedings for review had been shown, that would have been no cause for the abatement of this action. A plea of prior action pending, in order to suspend or abate the action to which it is pleaded, must show that the action pending is between the same parties, and for the same cause as that involved in the action which is sought to be abated. 2 Works Pr. and Pl. 684; Board, etc v. Lafayette, etc., R. R. Co., 50 Ind. 85, 117; Commissioners, etc., v. Holman, 34 Ind. 256; Fitzgerald v. Gray, 61 Ind. 109; Eiceman v. State, ex rel., 75 Ind. 46; Merritt v. Richey, 100 Ind. 416.

If an appeal had been perfected, the facts set out in the answer might have constituted sufficient ground for an application to the court to stay proceedings. As to this, however, we decide nothing. Walker v. Heller, 73 Ind. 46.

Some criticism is made upon the form of the demurrer. It is said, the ordinary form, that the answer does not state facts sufficient to constitute a cause of defence, is not sufficient when addressed to a plea in abatement.

We have been cited to no authority, and are not aware of any, which makes a distinction in the form of a demurrer, when addressed to a plea in abatement or other answer.

Speaking of general and special demurrers, and the proper occasion for their use, a standard author on pleading and practice says: "The plaintiff, however, need never demur specially to a plea in abatement." 1 Tidd Pr. 695.

After the demurrer to the plea in abatement had been sustained, the defendant answered the general denial, and upon the issue thus made finding and judgment followed, upon a trial by the court, against the appellant.

At the trial the court admitted in evidence the complaint and proceedings in the foreclosure suit, already referred to including the decree of foreclosure and the...