Frear v. Bryan
| Decision Date | 31 May 1859 |
| Citation | 12 Ind. 300 |
| Parties | Frear and Another v. Bryan and Others |
| Court | Indiana Supreme Court |
From the Tippecanoe Court of Common Pleas.
The judgment is reversed with costs. Cause remanded.
H. W Chase and J. A. Wilstach, for appellants.
W. C Wilson and G. Gardner, for appellees.
This was an action by Frear and Arbuckle, on a note executed by Bryan and Bryan to one Timmons, and by him assigned to the plaintiffs.
The answer was--
1. A set-off held against Timmons before notice of the assignment.
2. Payment to Timmons before notice, &c.
After several terms, they filed what they called a third paragraph, to the effect that, at the time the defendants delivered the goods and paid the note, as in the two former paragraphs set forth, said Timmons was the owner of the said note, and promised to deliver it to defendants, but failed so to do, and fraudulently assigned it to plaintiffs without their knowledge, and without consideration; but that the legal interest in said note, at the time of the delivery of said goods, vested in the defendants, and that said plaintiff had not, at any time, the legal title to said note.
Prayer, that said Timmons be made a party.
There was a denial to the first and second paragraphs of the answer. A demurrer to the third paragraph was overruled, and the ruling excepted to. Upon motion of defendants, the Court ordered Timmons to be made a party-plaintiff, and that he reply to said third paragraph. This he failed to do. The record does not show that he had notice of the order of the Court making him a party. No reply was filed by Frear and Arbuckle, to this third paragraph.
There was a jury trial; verdict and judgment for defendants.
Upon the trial, the plaintiffs offered Timmons as a witness to prove, among other things, that he had assigned and delivered the note sued on to the plaintiffs, in part payment of a prior debt, and that he notified the defendants thereof, before he created the debt to defendants for goods, as set up in the pleadings and mentioned in evidence, &c.
Objection was made by the defendants, and he was not permitted to testify, &c.
It is said by the appellants, that two errors were committed by the Court.
1. In ordering Timmons to be made a co-plaintiff.
2. In excluding his testimony.
As to the third paragraph, the appellant assumes that it is a petition to the Court to make a new party, and not an answer. Without stopping to inquire whether the third paragraph was strictly an answer or not, it is manifest to us that the demurrer should have been sustained to it, for the reason that it does not contain matter sufficient to make it either a good answer or a petition, if such could be presented, for the purpose prayed. Conklin v. Bowman, 11 Ind. 254. It could be considered, at most, but a repetition of an answer already in; and the failure to take issues upon it,...
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