Buscher v. Knapp
| Decision Date | 16 September 1886 |
| Citation | 8 N.E. 263,107 Ind. 340 |
| Parties | Buscher v. Knapp and others. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Hamilton circuit court.
Complaint for review of judgment.
Moss & Stephenson, for appellant. Neal & Neal and Jas. B. Black, for appellees.
The appellant alleges in his complaint that a judgment was rendered against him in a former action brought by the appellee; that the court committed two errors in the course of that action,-one in overruling a demurrer to a reply, and the other in admitting a will in evidence; and the prayer of the complaint is that the judgment be reviewed and annulled. The appellee filed a motion to dismiss this suit, and an affidavit stating that the cause in which the judgment sought to be reviewed was rendered had been appealed to this court. We agree with appellees' counsel that a party cannot prosecute an appeal and a suit to review, but must elect between these two remedies. Traders' Ins. Co. v. Carpenter, 85 Ind. 350;Klebar v. Town of Corydon, 80 Ind. 95;Searle v. Whipperman, 79 Ind. 424;Dunkle v. Elston, 71 Ind. 585. But while we concur with counsel in their statement of the general rule, we cannot hold that the rule benefits them, for they have not properly invoked its assistance. A question of the pendency of an appeal, or of another action pending, cannot be presented by a motion to dismiss. The proper method of presenting such a question, where, as here, the fact that an appeal has been prosecuted or is pending is not apparent on the face of the record, is by answer.
The reply in the original action was in two paragraphs, the first of which was a general denial. The demurrer to the reply, omitting formal parts, reads thus: “The defendant demurs to the second paragraph of the reply herein, and says that said paragraph does not state facts sufficient to avoid the allegations contained in the answer to which it is intended to be a reply.” The introductory clause of the first paragraph of the reply is in these words: “The plaintiff, for reply to the second paragraph of the defendant's answer, says;” and the introductory clause of the second paragraph of the reply is as follows: “And, for a second and further reply, the plaintiff says;” and it is contended by the appellee that the demurrer is defective because it does not show what paragraph of the answer the reply is not sufficient to avoid. This contention cannot prevail. We think the only reasonable and just construction of the reply is that it was addressed to the second paragraph of the answer, and we also think that the demurrer fairly indicates that the reply was challenged because of its failure to state facts sufficient to avoid that answer. We are of the opinion that where a demurrer is sufficient to indicate, with reasonable certainty, what paragraph of answer the reply fails to state sufficient facts to avoid, it presents the question of the sufficiency of the reply.
The complaint in the original action was upon two notes, executed by the appellant to his father, then in life, but deceased at the time the action was brought. The second paragraph of the appellant's answer to that complaint alleges that the notes sued on were executed as evidence of advancements made to the appellant by his father, and upon the latter's representations that “he only wanted the notes to satisfy his other children, and that he still intended the sums of money evidenced by the notes as an advancement of that much of his estate to the defendant, and that said sums of money after his death should be charged to the defendant.” We hold the answer good. It is competent to show, by parol, the consideration of a promissory note; and where a note is shown to be without consideration, or is shown to be executed merely as...
To continue reading
Request your trial