Clodfelter v. Hulett

• Decision Date: 03 January 1884
• Docket Number: 10,765
• Citation: 92 Ind. 426
• Parties: Clodfelter et al. v. Hulett
• Court: Indiana Supreme Court

92 Ind. 426

Clodfelter et al. v. Hulett

No. 10,765

Supreme Court of Indiana

January 3, 1884

From the Montgomery Circuit Court.

The judgment is affirmed, with five per cent. damages, at appellants' costs.

N. P H. Proctor, T. E. Ballard and M. E. Clodfelter, for appellants.

G. W Paul, J. E. Humphries and M. D. White, for appellee.

OPINION

Franklin C.

This suit was commenced by appellee against appellants in 1877, upon a joint promissory note, and this is the second time that it has been before this court. Clodfelter v. Hulett, 72 Ind. 137. It was then reversed upon the ruling on a demurrer to a paragraph of the answer; also a cross error was sustained upon the counter ruling on a demurrer to another paragraph of the answer, and the costs were equally divided between the parties, which had accrued subsequent to the committing of the first error.

At the original trial Noah Clodfelter had not been served with process; the summons as to him was returned not found, and the cause was continued as to him, with an order for process. There was an appearance and trial as to Matthias Clodfelter, the other defendant, and judgment was rendered against him for the amount of the note and interest. Matthias appealed the case to this court, where the judgment was reversed, as above stated.

Upon the return of the case to the circuit court, an amended complaint was filed, and Noah Clodfelter was again made a party defendant, the suit having been dismissed as to him, and process was served upon him. Matthias died, and Marion E. Clodfelter, his administrator, was substituted. The record then contains over 100 pages of pleadings and motions. The issues were finally closed. There was a trial by jury. At the request of appellants the jury returned a special verdict. Motions were made to require the jury to make additional findings, for judgment on the special findings, for a venire de novo, for a new trial, and for arrest of judgment, all of which were overruled, and judgment rendered for the appellee, which judgment was excepted to, and a motion made to modify the same, which was also overruled.

Appellants have each filed separate assignments of error--Matthias sixteen specifications and Noah eleven.

While this case presents not a very good commentary upon our constitutional provision, that "Justice shall be administered * * speedily, and without delay," still we will endeavor to proceed to dispose of the questions presented by appellants in their numerous briefs, leaving the others in the record that are unnoticed in the briefs, as being waived.

The evidence is not in the record, nor are there any bills of exceptions.

We first consider the questions presented on behalf of appellant Marion E., the administrator.

When the case was first called after the filing of the amended complaint, the order-book entry shows that there was a rule entered against the defendants to file answers. Counsel for this appellant entered a special appearance, and moved to set aside the rule, when appellee's counsel moved to strike out the motion and special appearance, which latter motion was sustained by the court.

There being no bill of exceptions, these motions are not properly presented in the record, so as to require any decision of this court upon them.

Counsel next insist that the court erred in sustaining the demurrer to the sixth, seventh and eighth paragraphs of this appellant's answer.

The sixth paragraph was a plea of former adjudication, and was based upon the judgment which was reversed by the former judgment of this court before referred to. This paragraph, in addition to alleging that the judgment was rendered in the circuit court, avers that the cause was appealed to the Supreme Court, and that the judgment of the circuit court was in all things reversed, and that it was adjudged by the Supreme Court that said appellant recover a judgment for one-half the costs, which judgment was accordingly rendered, and that the same is a finality upon said appellant's liabilities in the premises.

The merits of the case were by no means adjudged in the Supreme Court; the judgment of the court below was reversed for error in pleading, and the cause was remanded to the court below with instructions in relation to the pleadings, and that each party pay half the costs that had accrued subsequent to the first error found. Of course, as to the merits the cause went back to the court below for a new trial, and was to be tried de novo upon its merits the same as though no judgment had ever been rendered in the case.

This paragraph of answer presented no defence to plaintiff's cause of action.

The seventh paragraph contains substantially the same facts, with the additional averments that the note was a joint note, that the taking of the judgment against one of the makers was a merger of the note into the judgment, and that no subsequent suit could be maintained on the note. This is not a subsequent suit, but the same suit only retried after the former proceedings had been set aside by a reversal of the former judgment.

There is nothing in this paragraph that this appellant could possibly plead in bar to appellee's action. Maghee v. Collins, 27 Ind. 83.

The eighth paragraph contains the same averments as the seventh, with additional ones that this appellant was surety on the note; that his appeal of the case remained in the Supreme Court for a long time, three years or more; that during said time appellee took no steps to bring his co-joint obligor into court to be bound by that judgment; that during said time said joint obligor was solvent and had plenty of property to pay all the debt, but since has become and now is wholly insolvent.

If appellant by his appeal prevented appellee from bringing the co-obligor into court and having him bound by the judgment, he certainly can not now take advantage of that fact to the prejudice of appellee. Then, if he had been bound by the judgment, this appellant got the judgment reversed, and that would have unbound his co-obligor, and left matters standing as though no judgment had been rendered on the note. This paragraph is clearly insufficient. There was no error in sustaining the demurrer to the sixth, seventh and eighth paragraphs of this answer.

But it is insisted by appellant that the demurrer in form requires that if any one of the paragraphs of the answer is good, it should be overruled as to the whole. The language of the demurrer is as follows:

"The plaintiff files his separate demurrer to the first, second, third, fourth, fifth, sixth, seventh and eighth separate answers of the defendant Marion E. Clodfelter for the reason that neither of said separate paragraphs of separate answer states facts separately and severally sufficient in law to constitute a defence to the plaintiff's complaint and cause of action, and there are not facts enough alleged in said paragraphs separately to constitute a defence to plaintiff's complaint."

We think the demurrer was properly treated as a several demurrer to each paragraph of the answer.

Appellant's counsel next insist that the court erred in overruling appellant's motion that appellee be required to secure the costs. Neither this motion, nor the affidavit upon which it was based, is made a part of the record by bill of exceptions or otherwise, as provided for by law. This question can not be considered.

It is further insisted that the court erred in overruling appellant's motion to open and close the evidence and argument to the jury. This appellant had no general denial filed in his answer, and admitted the plaintiff's cause of action and the amount of his attorney fees as claimed. But there were two defendants, and the other defendant made no admissions, either as to the cause of action or attorney fees. Without such additional admission, there was no error in overruling the motion. Hyatt v. Clements, 65 Ind. 12. Neither was this motion made a part of the record by bill of exceptions or otherwise as is required.

The next specification of error insisted upon is that the court erred in overruling appellant's motion for a venire de novo.

This...