Conger v. Miller
| Decision Date | 20 January 1886 |
| Docket Number | 12,303 |
| Citation | 4 N.E. 300,104 Ind. 592 |
| Parties | Conger et al. v. Miller |
| Court | Indiana Supreme Court |
From the Fulton Circuit Court.
The judgment is affirmed, with costs.
S Keith, for appellants.
G. W Holman and M. R. Smith, for appellee.
This was a suit by the appellee, Miller, against the appellant Margaret E. Conger, as sole defendant. In his complaint, the appellee alleged that he was the owner in fee of the undivided two-thirds of twenty acres of land, particularly described, in Fulton county; that appellant Margaret E Conger was the owner of the remaining one-third of such land; that appellee desired to have his share of the land set off to him in severalty, and he prayed for partition accordingly.
Afterwards, upon the verified petition of the appellant Margaret E. Conger, her husband, Samuel M. Conger, and her children, John T. Conger, Rebecca Wallace, Mary Dick, Ettie Conger, Anna Conger, Lewis Conger and Nora Conger, were made co-defendants with her in this suit, upon the alleged ground that they all had an interest in the land described in appellee's complaint. All such defendants jointly answered by a general denial of the complaint, and they all joined in a cross complaint against the appellee, wherein they asked that their title to the land in controversy might be forever quieted. To this cross complaint the appellee's demurrer, for the alleged insufficiency of the facts therein to constitute a cause of action, was sustained by the court. Afterwards, at the next term of the court, appellants withdrew their answer in general denial of the complaint, and thereupon, "the defendants each being three times called, in open court, come not, but herein make default." The cause was then heard by the court, and a finding was made for the appellee. An interlocutory order was made for the partition of the land described in the complaint, as prayed for therein, and commissioners were appointed by the court to make such partition. Afterwards, at the same term, such commissioners made and acknowledged, in open court, their report in writing of such partition, which was approved and confirmed by the court, and final judgment of partition was rendered thereon and in accordance therewith.
The defendants have appealed to this court. They have assigned no error here which calls in question any of the proceedings in the partition suit. Indeed, so far as the record shows, no objection was made or exception taken to any of such proceedings.
The only error assigned by appellants is the sustaining of appellee's demurrer to their cross complaint. In their assignment of error, appellants' pleading is called their "cross bill or second paragraph of answer." It must be either the one or the other; it can not be both cross complaint and answer. It is settled by our decisions that no single pleading can be made to perform the two-fold function of an answer in bar, and a counter-claim or cross complaint asserting a cause of action. Campbell v. Routt, 42 Ind. 410; Thompson v. Toohey, 71 Ind. 296; Anderson, etc., Ass'n v. Thompson, 88 Ind. 405. If the pleading in question were considered as a paragraph of answer, it would be clear that the sustaining of the demurrer thereto, even if erroneous, would have been at most a harmless error, because every material fact stated in such paragraph could have been given in evidence under the answer in general denial, which was still in the record when the demurrer was sustained, and its subsequent withdrawal would not have rendered the ruling on the demurrer an available error.
We think, however, that appellants' pleading is, and was intended to be a cross complaint, and that it must be so considered here in determining the question of its sufficiency. In such pleading, appellants prayed for affirmative relief, asking therein that their titles might be quieted, and that, of itself, is sufficient to characterize the pleading as a cross complaint. A cross complaint, like a complaint, must be good within and of itself, without aid from other pleadings in the cause. Campbell v Routt, supra; Masters v. Beckett, 83 Ind. 595. In Ewing v. Patterson, 35 Ind. 326, it is said: ...
To continue reading
Request your trial