Buscher v. Volz

• Decision Date: 25 October 1900
• Citation: 58 N.E. 269,25 Ind.App. 400
• Parties: BUSCHER et al. v. VOLZ et al.
• Court: Indiana Appellate Court

25 Ind.App. 400

58 N.E. 269

BUSCHER et al.

v.VOLZ et al.

Appellate Court of Indiana.

Oct. 25, 1900.

Appeal from circuit court, Tipton county; W. W. Mount, Judge.

Action by George Volz and others against John Buscher and others. From a judgment in favor of plaintiffs, and from an order denying a new trial, defendants appeal. Reversed.

Gifford & Coleman and M. T. Sheil, for appellants. Fippin & Purvis, for appellees.

WILEY, J.

Appellants and appellees were partners, doing business in the name of the Citizens' Gas & Oil Company of Atlanta, Ind. Said company, or firm, as it is designated in the record, became indebted to one Martz on a promissory note executed by appellant Buscher as president, and when said note became due the payee brought an action thereon against all the members of said firm. Five of the defendants to that action appeared, employed counsel, and made defense. The cause was put at issue, and set for trial December 3, 1898. Prior to that date, by an arrangement between the members of the partnership and the plaintiff, the case was compromised. The day before the case was set for trial, to wit, December 2, 1898, the 5 members of the firm who made a defense to the original action filed a cross complaint against their co-defendants, appellants here, numbering 61 in all, to recover from them $15 for attorney's fees for which they were liable to the attorneys whom they had employed, and which the cross complaint avers appellants agreed to pay. These facts all appear in the cross complaint. The cross complaint avers that appellees paid to the appellants certain sums of money, being in the aggregate $69.50, and then follow these averments: “And by way of compromise, and in consideration of the said amount by cross plaintiffs, cross defendants then and there agreed, promised, and contracted to pay to Fippin & Purvis an attorney fee of $15.00, contracted by cross plaintiffs in their said defense against William Martz's cause of action, said payment to be made before the day this cause was set for trial; and cross complainants agreed as a part of said consideration that Gifford & Coleman, attorneys for cross defendants, should be paid by said firm also.” The cross complaint avers a refusal and failure to pay, and demands judgment. Appellants demurred to the cross complaint for want of facts. The demurrer was overruled, and exceptions reserved. The cause was put at issue by answer and reply, tried by jury, resulting in a verdict and judgment for appellees. Appellants' motion for a new trial was overruled. By the assignment of errors, the overruling of the demurrer to the cross complaint and the motion for a new trial are before us for review.

The original complaint under which the cross complaint was filed is not in the record, and all we know about it is what is stated in the cross complaint. From this we are advised that the original complaint declared upon a promissory note executed by the president of the Citizens' Gas & Oil Company of Atlanta to one William Martz for borrowed money for the use and benefit of the company. Martz sued all the members of the company or firm upon this note, and the firm was composed of cross plaintiffs and cross defendants. The cross complaints aver that pending that action the cross plaintiffs appeared, employed counsel, and prepared to defend; that a compromise was made between cross plaintiffs and cross defendants, by which the Martz note was to be paid, and that cross defendants agreed to pay Fippin & Purvis the attorney's fee contracted by cross plaintiffs. Our first inquiry will be directed to the sufficiency of the cross complaint, and this suggests the investigation as to the nature and object of such a pleading. Our Code does not provide for a cross complaint, but the chancery practice of determining the rights of the parties on each side of the case is recognized by our decisions, and in such cases the rules of pleading and practice of chancery courts, as modified by the spirit of the Code, govern. Heaton v. Lynch, 11 Ind. App. 408, 38 N. E. 224. A cross complaint, under the Code system of practice, is in its nature and object substantially equivalent to the cross bill in equity, so far as that pleading is used to obtain affirmative relief. 5 Enc. Pl. & Prac. 674. It is a rule of chancery practice, followed in the federal courts and most of the state courts, that matters set up in a cross bill must be germane to the matters involved in the original bill of complaint. Id. 640, and cases there cited. Of the many states where this rule is followed we cite the following: Alabama, Arkansas, Connecticut, Florida, Georgia, Idaho, Illinois, Indiana, Kentucky, Massachusetts, Michigan, etc. It is also the rule, well grounded by the authorities, that the new facts which it is proper for a defendant to introduce into a pending litigation by means of a cross bill are such, and such only, as are necessary for the court to have before it in deciding the questions raised in the original suit to enable it to do full and complete justice to all the parties before it in respect to the cause of action upon which the complainant rests his right to aid or relief. If a defendant, in filing a cross bill, attempts to go beyond this, and to introduce new and distinct matter not essential to the proper determination of the matter put in litigation by the original bill, although he may show a perfect case against the complainant or one or more of his co-defendants, his pleading will not be a cross bill, but an...