Burns v. Mills, 12141.

• Decision Date: 07 April 1925
• Docket Number: No. 12141.,12141.
• Citation: 147 N.E. 300,82 Ind.App. 621
• Parties: BURNS v. MILLS.
• Court: Indiana Appellate Court

82 Ind.App. 621

147 N.E. 300

BURNS

v.MILLS.

No. 12141.

Appellate Court of Indiana, Division No. 1.

April 7, 1925.

Appeal from Circuit Court, Wabash County; Albert Ward, Judge.

Action by John H. Mills, receiver, against Elmer Burns. Judgment for plaintiff, and defendant appeals. Affirmed.

Plummer & Plummer, of Wabash, for appellant.

Walter S. Bent, of Wabash, for appellee.

ENLOE, J.

This is an action by appellee to recover upon a subscription for stock in the Wabash South Side Improvement Company. Appellant filed his motion to make the complaint more specific; this motion was overruled, and he duly excepted. He then filed an answer in two paragraphs, the first being a general denial. A demurrer was sustained to the second paragraph, after which appellant filed an amended second paragraph of answer, to which also a demurrer was sustained and to which ruling the appellant excepted. The cause went to trial upon the issues made by the complaint and answer thereto, and resulted in a finding and judgment against appellant, from which this appeal is prosecuted. The errors assigned are: Overruling said motion to make more specific, and sustaining said demurrer to said amended second paragraph of answer.

[1] As to the alleged first error: The courts of this state are now firmly committed to the rule as the overruling of such a motion is so largely in the discretion of the trial court, such action will not be cause for reversal the record affirmatively shows that the appellant was injured thereby. Haskell, etc., Co. v. Trzop, 190 Ind. 35, 128 N. E. 401;Phœnix Ins. Co. v. Rowe, 117 Ind. 202, 20 N. E. 122;Terre Haute, etc., Tr. Co. v. McDermott (Ind. App.) 144 N. E. 620, and authorities cited. In this case there is no bill of exceptions containing the evidence adduced on the trial, and it therefore follows that no harm is shown to have been suffered by the appellant, as a result of said ruling.

[2][3] The appellee insists that, as to the second alleged error, no question is presented for our consideration for the reason that neither said demurrer nor the “memorandum” of deficiencies is set out in appellant's brief. With this contention we cannot agree. We must presume in favor of the action of the trial court, and therefore that said demurrer was proper as to its form. As to the memorandum accompanying said demurrer, it is well settled that the trial court was not bound thereby; that, while the party demurring was limited to the “deficiencies therein specified,” and, as to such party, all other deficiencies were deemed to have been waived, yet, if the pleading was bad from any...