Colglazier v. Colglazier
| Decision Date | 08 March 1889 |
| Docket Number | 13,413 |
| Citation | 20 N.E. 490,117 Ind. 460 |
| Parties | Colglazier, Administrator, v. Colglazier |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled April 27, 1889.
From the Washington Circuit Court.
Judgment reversed, at costs of appellee, with instructions to sustain the demurrer to the third paragraph of answer, and for further proceedings not inconsistent with this decision.
D. M Alspaugh, J. C. Lawler and T. Huston, for appellant.
S. B Voyles and H. Morris, for appellee.
This action was brought by appellant as administrator of the estate of Abraham Colglazier, deceased, against the appellee.
The complaint alleged that in December, 1876, the decedent, reposing special trust and confidence in his son, the appellee, entrusted to him, as his agent and trustee, the care and custody of his property and the management of his business affairs; that the decedent was at that time nearly 88 years of age, had almost lost his sight and hearing and was, in a great degree, incapacitated for the transaction of business; that decedent then had notes and other personal property aggregating $ 4,000; also a tract of land in Washington county of the value of $ 6,500; that on the 8th day of January, 1877, appellee, as agent and trustee of decedent, sold at public auction personal property of decedent of the value of $ 800; that on the 13th day of June, 1877, appellee purchased of decedent, and received a deed from him for, said real estate for the consideration of $ 6,500; that from December 1, 1876, appellee had control of the cash, notes, and all other property of the decedent, up to and until his death; that such cash, notes, personal property and purchase-price of said real estate amounted in the aggregate to $ 11,000; that during the time appellee acted as such agent and trustee of decedent, the decedent resided at the house of appellee, as one of his family, and died there; that the appellee took advantage of the age and infirmities of the decedent, and of the confidence reposed in him by the decedent, and prevented the decedent from consulting with his other children and members of his family, and concealed and secreted his acts and doings as such agent and trustee from the other members of decedent's family, and failed to make or render an account of his acts and doings as such agent and trustee to decedent in his lifetime; that appellee, as such agent and trustee, collected all the notes and accounts of decedent except notes to the amount of $ 1,350; that he converted the amounts so collected, and money so received, to his own use and benefit, amounting in the aggregate to $ 10,000; that he transacted the business of the decedent in his own name, and mingled the funds so received and collected with his individual property, so appellant can not more particularly describe the transactions; that after the death of decedent, and appellant's appointment as administrator, he called upon the appellee and demanded the property left by decedent, and an accounting by appellee as such agent and trustee; that appellee delivered to him notes to the amount of $ 1,350, twenty dollars in cash and a bed of the value of $ 5, and refused to deliver to appellant any other cash, notes or property, or to render an account as such agent and trustee for any other property, and denied all knowledge of any other cash, notes or property. Prayer for judgment for $ 10,000 and all proper relief.
To this complaint appellee filed an answer in three paragraphs.
The first is a general denial. The second alleges that all money, notes and property of every name and kind mentioned in the complaint were paid for, settled and delivered to plaintiff's decedent, and to persons by him designated to receive the same, by defendant during said decedent's lifetime, in full accord with said decedent's wishes, and to his satisfaction in all things, as evidenced in writings duly executed by plaintiff's decedent in his lifetime, copies of which writings are filed with the paragraph, and made a part of the same, marked exhibits A and B. Then follows a denial of every other material allegation in the complaint not answered by the special allegation of fact stated in said paragraph. Exhibit A is a writing, dated March 4th, 1878, stating the amount decedent had given to each of his children, and following with a statement that "to make them equal I give to," naming a certain amount to each child. Exhibit B is a writing in the nature of a receipt, stating that appellee had made sale of decedent's property in January, 1877, and had accounted for the same, and receipts in full. Both writings were signed by the decedent.
Appellant first moved the court to strike this paragraph out, for the reason that the facts alleged therein amount to no more than the general denial, and that the same evidence could be given under the general denial as under this paragraph; he also moved to strike out the exhibits. The court overruled the motion. This ruling constitutes no error for which the judgment can be reversed.
The overruling of a motion to strike out a part of a pleading, or a paragraph of pleading, as surplusage, and for the reason that the same evidence may be given under another paragraph does not constitute such error as will reverse a case. Hutts v. Hutts, 51 Ind. 581; House v....
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